BBB Online Interest-Based Advertising Accountability Program Issues Compliance Warning Regarding Enhanced Notice

On Monday, the Council of Better Business Bureaus (“BBB”) Online Interest-Based Advertising Accountability Program (the Program”) announced that it had closed its investigation of seven companies that allegedly failed to provide enhanced notice of data collection for online behavioral advertising (“OBA”) on their websites. The Program, along with the Direct Marketing Association, is responsible for monitoring and enforcing compliance of the Digital Advertising Alliance (“DAA”) Self-Regulatory Principles for Online Behavioral Advertising. In connection with the administrative closure, the Program issued a compliance warning to all first-party websites, restating the obligations of enhanced notice and requiring compliance by January 1, 2014.

The OBA Transparency Principle requires websites to provide consumers with clear, meaningful, and prominent notice of data collection for OBA, as well as an easy-to-use way to exercise choice whether or not to permit such collection. Additionally, each web page that collects data for OBA must provide an enhanced notice link” identifying the data collection. The enhanced notice link should take the consumer directly to the website’s disclosure regarding OBA that directs the consumer to an industry-developed page, such as the DAA’s Consumer Choice Page, or provides links to the choice mechanisms of all third parties engaged in OBA on the site. (This disclosure is often provided in a website’s privacy policy and, if so, the enhanced notice link should connect to the portion of the privacy policy that addresses OBA.) As the compliance warning emphasizes, the enhanced notice link must be separate from the general link to the privacy policy. While the enhanced notice link can be provided through an in-ad notice (e.g., the AdChoices Icon), if there is not an ad bearing the in-ad notice on every web page, but such web page still collects data for OBA, the enhanced notice link should be provided elsewhere on the page. This is often accomplished by including the enhanced notice link in the website footer so it is provided regardless of whether an ad containing in-ad notice is presented on the web page.

In deciding to close the investigation, the Program noted that a significant minority of websites otherwise in compliance with the OBA Principles were not in compliance with the enhanced notice requirement and that it would therefore be unfair to single out a single website (or seven). The Program also explained that the seven websites: (1) had a longstanding history of compliance with OBA requirements; (2) were among a significant number of companies confused by the enhanced notice requirement; and (3) promptly responded to the investigation, as each has achieved or will soon achieve full compliance. Additionally, there were no prior best practices, either FTC- or industry-developed, regarding enhanced notice. The Program emphasized that such administrative closures will be rare. Companies engaging in OBA should take heed of this warning, evaluate their current OBA disclosure practices, and, as necessary, adjust these practices before the January 1, 2014 compliance deadline.