The Online Interest-Based Advertising Accountability Program (Accountability Program) recently released decisions regarding the online behavioral advertising practices of Kia Motors America and the ad networks servicing the company. The Accountability Program, an investigatory arm of the Better Business Bureau’s Advertising Self-Regulatory Council, regulates online behavioral advertising through vigorous independent enforcement of industry leader-developed best practices. According to the Accountability Program, several Kia ads failed to comply with the Online Behavioral Advertising (OBA) principles’ notice and choice requirements by failing to display the AdChoices Icon (inset) on their online advertising.
Any person or entity may initiate an Accountability Program inquiry. The Accountability Program directs online consumers to the Better Business Bureau’s website to submit a user-created Consumer Report Form, which includes website-identifying information, the consumer’s complaint, and detailed screenshots. The Accountability Program also opens inquiries through internal testing of consumer-choice mechanisms. In reviewing submissions, the Accountability Program has broad discretion to select matters based on consumer impact, resource availability, and existence of evidence. The entity under review is notified of the pending inquiry and has the opportunity to submit materials to the Accountability Program. The initiating party may participate in the review process, which ultimately results in a published Accountability Program decision evaluating the covered entity’s OBA compliance, while re-assessing OBA principles. Each decision serves as guidance to all other covered persons and entities engaged in OBA, including ad agencies, service providers, web publishers, and marketers. Further, while Accountability Program decisions are non-binding, failure to adhere to a decision issued by the Accountability Program may result in the Accountability Program referring a case up to the Federal Trade Commission (FTC).
For Kia, the Accountability Program initiated an inquiry when its internal testing of the company’s online advertising campaign identified third-party collection of OBA data without the requisite AdChoices Icon. After the Accountability Program reviewed Kia’s position and issued their decision, Kia demonstrated their willingness to adhere to the OBA principles and instructed its ad networks that they must comply with the OBA principles.
All companies engaging in online behavioral advertising should ensure that their practices are in line with the OBA principles. The principles offer some of the best guidance for complying with the FTC’s current stance on online behavioral advertising protections. Additionally, companies must be sure to monitor their advertising agencies and make them aware of their responsibility to adhere to the OBA principles as well. Improper notice and choice could potentially lead to an FTC action.