Accountability Program Decisions Throw Spotlight on Website Operators’ Compliance

BMW and Scottrade Implement DAA’s Transparency and Choice Requirements on their Websites

Arlington, VA – Nov. 18, 2013 – Continuing its recent focus on website operators’ obligations under the Self-Regulatory Principles for Online Behavioral Advertising (OBA Principles), today the Online Interest-Based Advertising Accountability Program (Accountability Program) released the results of formal inquiries into the practices of Scottrade, Inc. (Scottrade) and BMW of North America, LLC (BMW). The Accountability Program found that while the companies were already complying with the in-ad notice requirements of the OBA Principles, they were not yet fulfilling the OBA Principles’ requirements for Transparency and Consumer Control on their websites. The companies agreed to implement the Accountability Program’s recommendations and have updated their websites.

“Today’s Decisions once again emphasize the importance of providing consumers with Transparency and Consumer Control, the cornerstones of the OBA Principles, on the websites they visit,” said Genie Barton, Council of Better Business Bureaus VP and Director of the Accountability Program. “The OBA Principles are designed to ensure that a consumer has notice about a company’s data collection and use practices and the ability to exercise informed and readily available choice about whether they wish to participate in interest-based advertising.”

Website operators must be mindful that the Transparency and Consumer Control Principles apply not only when an interest-based ad is served, but also when a website operator or Web publisher participates in OBA by allowing third parties to collect information for tailored advertising from its website visitors or by transferring data to third parties for use in OBA on non-affiliated websites. Specifically, under the OBA Principles website operators must provide a clear explanation about these OBA practices either in the privacy policy or elsewhere on the website. This website notice must be clear, meaningful and prominent. Additionally, website notice should provide easy access to the opt-out mechanisms of each third party engaged in OBA on the website or link to an industry-developed Web page, such as the Digital Advertising Alliance (DAA) Consumer Choice Page, where a consumer can exercise choice about whether to participate in interest-based advertising.  Website notice should also include the website operator’s statement of adherence to the OBA Principles.

In addition to the website notice discussed above, as explained in the Accountability Program’s recent Compliance Warning, there is a requirement that an enhanced notice link be provided on every page of the website where third parties are collecting data for use in interest-based advertising. The enhanced notice link should be separate from the privacy policy link and at least as prominent. When clicked, it should take the consumer directly to the website notice, discussed above, where the website operator provides an explanation of the OBA activity occurring on its website and how the consumer can opt out of receiving interest-based ads.

Those companies that are fully compliant with all the Transparency and Consumer Control requirements of the OBA Principles except the enhanced notice link for third-party collection of information for OBA purposes have until January 1, 2014 to meet that requirement. Companies that are out of compliance with other website requirements or with in-ad notice and choice run the risk of facing an Accountability Program enforcement action at any time.

Finally, the Accountability Program today released an administrative disposition resolving a similar inquiry regarding Volkswagen of America, Inc. (VW). In response to the Accountability Program’s letter of inquiry, VW explained that it had been working with counsel to update its privacy policies and was in the process of implementing counsel’s recommendations on its website. Because VW was already voluntarily and proactively coming into compliance with the OBA Principles on its website when the Accountability Program began its inquiry, the Accountability Program closed that case via an administrative disposition rather than a decision.