Oh BehAve! The BBB Is Watching

The BBB is responsible for enforcing the self-regulatory code created by the Digital Advertising Alliance (DAA), which requires website operators to provide additional information regarding their OBA activity. Although the DAA code has been in force for some time now, the BBB has noted that many website operators are failing to comply. Therefore, beginning this year, the BBB intends to increase its efforts to require compliance.

Tell Me More

As background, the DAA code applies generally to all companies involved in OBA. While there are several principles within the code, the primary focus of the DAA code is to require website operators to be transparent regarding their data practices as they relate to OBA so that consumers are provided with notice and choice regarding their data. The code places obligations on both advertising providers, as well as website operators.

Under the code, those advertisers that use OBA to place ads on websites should provide a notice on their ads that they are engaging in such activity. The most commonly used notice is the AdChoices icon:  In addition to the notice placed on the actual ads, websites that permit third-parties to collect information for OBA purposes or that collect or use information for OBA purposes must provide notice regarding these practices. Specifically, if such activities are taking place, a website operator must (1) serve an advertisement that displays the AdChoices icon (or similarly purposed disclosure) on each page of the website, and/or (2) provide a notice at the bottom of its website that links to information regarding OBA.

When providing a notice on the website, the notice must be conspicuous and named something such as “AdChoices” or “About Our Ads” so that it is clear to consumers what information may be obtained by clicking the link for the notice. It may also include the AdChoices icon, but use of the icon is not mandatory given that a license fee often applies. Additionally, the notice must be separate from the privacy policy, but is most commonly placed next to the link for the privacy policy and website terms of use. When a consumer clicks on the link for the notice, they must either (a) be directed to an industry website that discusses OBA, provides a list of third-party advertisers participating on the site, and provides an opt-out, or (b) be directed to the section of the website privacy policy that provides this information.

Take Note

All companies involved in OBA should be aware of these requirements. The BBB is actively monitoring websites and accepting complaints from third-parties to detect non-compliant websites. Where it detects compliance deficiencies, it will contact non-compliant website operators to have them update their practices. They will also likely issue a press release discussing their findings and their recommendations, which is more of a publicity issue for advertisers. That said, failure to implement the BBB’s recommendations or to participate in its investigation may result in the BBB referring the issue to the Federal Trade Commission (FTC). Such a referral may lead to additional issues (up to and including an enforcement action) given that the principles included in the DAA code largely mirror the FTC’s view of appropriate OBA practices.