England: Brands Bulletin - January 2013
They're watching you…
Online Behavioural Advertising ("OBA") involves a third party collecting, over a period of time, website viewing behaviour data from a person's computer. The data is then used by the third party to deliver advertising to that person's computer, based on the preferences or interests inferred from the data collected. In blunt terms, it is a sophisticated form of targeted advertising and the advertising that a person receives is often (but not always) determined by a cookie (a small text file) stored on that person's computer by the third party provider of the OBA services.
The use of OBA has been growing over the last decade and, as a consequence of an EU wide industry initiative, from 4 February 2013, third party providers of OBA services will have to comply with new rules introduced into the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing ("the CAP Code"), relating to the use of OBA. The Advertising Standards Authority ("ASA") will enforce the new rules. Similar rules will be incorporated into advertising codes in other EU states.
In summary, the new rules will require all third parties, engaged in OBA, to provide on their own website a clear and comprehensive notice to website users that they collect and use web viewing behaviour data for the purposes of OBA. The notice must also link to a relevant mechanism that provides a means, whereby a web user can opt out of the collection and use of his/her website viewing behaviour data for OBA purposes. Third parties engaged in OBA must also give, either in or around an online display advertisement which has been displayed as a result of undertaking OBA, clear and comprehensive notice that they are collecting and using web viewing behaviour data for the purposes of OBA. Most third parties are likely to choose to do this through an icon in the corner of the display advertisement. Again, the notice must link to a relevant mechanism that provides a means whereby a web user can opt out of the collection and use of his/her website viewing behaviour data for OBA purposes. Further, third parties must not create interest segments specifically designed for the purpose of targeting OBA to children aged 12 or under. Finally, if they use technology (e.g. a toolbar plug in at a browser level, or deep packet inspection techniques at an ISP level) to collect and use information about all or substantially all websites that are visited by web users on a particular computer, in order to deliver OBA to that computer, then they must obtain explicit consent from web users before doing so.
The new rules do not apply to the collection and use of information for OBA purposes by website operators on their own websites, nor to the use of OBA on mobile devices (although, in the later case, it is envisaged that they will do so in due course).
The new rules are not designed to provide compliance with any specific law (e.g. the Data Protection Act 1998 and/or the Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2011) and so consideration still needs to be given as to whether the OBA services comply with all relevant laws. Indeed, it is certainly arguable that unless explicit informed prior consent is obtained from a web user before any of their information is collected (e.g. via a cookie) and used for OBA purposes (i.e. they "opt-in", rather than "opt-out") then the third party is breaching Article 5 (3) of the revised E-Privacy Directive. However, the new CAP Code Rules do not require this level of compliance, save where a third party uses technology to collect and use information about all or substantially all websites that are visited by web users on a particular computer, in order to deliver OBA to that computer.
If you wish to discuss this email, or any other brand or trade mark issue, please contact Carl Steele, Head of Trade Marks, or feel free to contact any of Ashfords' IP Partners.
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