November 2012 – Many global marketing leaders met recently in Chicago for the Promotion Marketing Association's (PMA – now “Brand Activation Association”) Annual Marketing Law Conference entitled "Converging Platforms and Diverging Laws." Attendees heard from a wide variety of speakers, including representatives of the world's largest brands, the Federal Trade Commission, technology pioneers and leading law firms. The agenda was chock-full of presentations designed to address the seemingly never-ending challenges that lawmakers and practitioners face while trying to keep pace with new technology and practices. Topics ranged from traditional advertising concerns, to challenges with ever-changing social media and digital platforms, to disclosure requirements in mobile app development.

Perhaps the most commonly discussed theme, however, was that of data privacy — particularly, concerns surrounding online/mobile tracking and targeting. It is clear that data privacy issues present unique challenges to an advertising industry that now relies heavily on highly targeted ads.

In the United States, it’s been reported that almost 200 class action lawsuits have been filed against publishers, ad servers and advertisers. In addition, the Federal Trade Commission is pushing for the industry to adopt a ‘Do Not Track’ option for consumers. Meanwhile, the European Union has imposed strict consent rules for tracking and targeting. Here in Canada, the Office of the Privacy Commissioner has released a policy position on online behavioural advertising (OBA). Despite stating that all information collected for OBA will be considered as “personal information” for the purposes of Canada’s privacy legislation (regardless of whether that information can be reasonably used to identify an individual), the guidelines do purport to allow for the collection of personal information for OBA so long as certain requirements are met (e.g., that users be given notice of the option to immediately and persistently opt-out of being tracked). Speaking on a behavioural advertising panel, Brenda Pritchard (head of the Firm’s Manufacturing and Industry Group) advised that Canada will be following a self-regulatory model similar to the U.S. — so, expect to see an OBA icon on Canadian websites soon.

Overall, there are many legal challenges that face a global advertising industry as changes in the law and regulatory action intersect with changes in technology and media. In addition to educating each other through conferences like PMA’s Annual Marketing Law Conference, it is imperative that the industry work together to educate consumers and provide them with sufficient notice and choice.