As we previously reported, the Online Interest-Based Advertising Accountability Program ("the OIBAAP") has issued a general compliance warning concerning the enforcement of the Digital Advertising Alliance self-regulatory privacy and disclosure principles ("the Principles") with respect to online behavioral advertising in native ads. These principles highlight the requirement to deliver transparency and control to users when engaging in online behavioral advertising.

Following the compliance warning, the OIBAAP has recently issued two decisions against Outbrain and Gravity, which concerned the requirement to provide a "clear, meaningful, and prominent" link to a compliant disclosure (an "enhanced notice" link) anywhere on webpages where data is collected, or where an interest-based  ad  is served (in  practice, in  or  around  the companies' recommendation widgets).

In the Gravity decision, the OIBAAP highlighted the importance of effectively collaborating with web publishers to ensure that enhanced notice links are in fact provided, in order to satisfy the obligation to provide enhanced notice on non-affiliate websites. The OIBAAP stressed, in  this regard, the importance of the enhanced notice requirement, is deemed as "the most innovative, privacy-enhancing component of the Principles". However, the OIBAAP has noted that Gravity has demonstrated that it is committed to remedying the compliance issues.

In the Outbrain disposition, the OIBAAP noted that concerning the initial compliance issues with regard to the effective provision of an enhanced notice, due to the proactive steps taken by it to remedy the compliance issues, Outbrain is now in full compliance with the Principles.

These  decisions  demonstrate  the  importance  of  complying  with  the  industry's  privacy  and disclosure codes with respect to delivering online behavioral advertising, and in particular, regarding native advertising and cross-device tracking. We encourage our clients and friends to consider the implementation of these requirements and to contact us with any questions concerning this issue.