Accountability Program Cracks Down on Compliance With DAA

Advertising Law

Bringing its total of public actions to 80, the Online Interest-Based Advertising Accountability Program released two cases addressing elements of first- and third-party compliance under the Digital Advertising Alliance’s (DAA) Self-Regulatory Principles.

In one case, a consumer complaint led the self-regulatory body to investigate Adbrain, a digital marketing company that delivers targeted ads to consumers and provides other services for a number of advertisers. After reviewing the company’s compliance with the first-party requirements of the OBA Principles and the Mobile Guidance, the Accountability Program found that Adbrain lacked the requisite enhanced notice link and that the opt-out process it offered was too difficult for the average consumer.

Specifically, the opt-out process required consumers to enter the “device ID” for their mobile device into a text box, but Adbrain failed to define the term or where to locate it, the Accountability Program noted. Android users had to locate and then correctly input a 32-character alphanumeric ID; iPhone users had to perform independent research to locate their ID and sometimes even had to download an app to obtain it.

“Even though this opt-out mechanism functioned correctly, the barriers to effectuating the opt-out were so significant that the tool did not serve as an easy-to-use means for consumers to exercise choice,” according to the Accountability Program.

To respond to the group’s concerns and achieve compliance with the DAA principles, Adbrain added an “AdChoices” link to its website footer and updated its privacy policy to include a statement of adherence to the principles. The company also adopted a two-part response fix for its problems related to Mobile Guidance. As an interim solution, the company updated its “Opt out page” to provide directions on how to locate the “device ID,” and promised to implement a more “user-friendly” opt-out mechanism within a commercially reasonable period.

The second action involved Exponential Interactive, after the Accountability Program discovered the company was collecting data from healthcare insurance websites without providing real-time notice or enhanced notice of the collection, as required by the DAA principles.

Exponential attempted to reassure the Accountability Program that it required its clients to comply with the principles via contract and provided guidance and training materials. The company also asserted that it was the client’s responsibility to provide enhanced notice, but the self-regulatory body disagreed.

“[O]ur prior cases have demonstrated that third parties may not simply foist compliance responsibilities onto first parties, but must communicate with them effectively to ensure that compliance obligations are discharged,” the Accountability Program pointed out. “Self-regulation is strongest when an entire industry commits to compliance and to mutually reinforcing communication, particularly one as complex and quick-moving as the online ad system.”

In response, Exponential committed to revising its contractual terms. Working with the Accountability Program, the company changed its terms and conditions to require its clients to comply with the DAA principles, and also agreed to develop additional training documents to advise clients on how to achieve compliance.

To read the decision in the Adbrain action, click here.

To read the decision in the Exponential Interactive Inc. action, click here.

Why it matters: The decisions remind advertisers about the importance of first- and third-party compliance with respect to the DAA principles, touching on issues ranging from the importance of an enhanced notice link to the need for a consumer-friendly opt-out mechanism to the importance of communication between first and third parties to ensure that compliance does not fall through the cracks.

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