Earlier this week, the Federal Trade Commission announced that it has reached a settlement with Chitika, Inc., an ad network that tracks a user’s online activities in order to deliver advertising targeted to the individual user’s interests. In its complaint, the FTC claimed that Chitika made statements that (1) users could opt out of targeted advertising by clicking on an “Opt-Out” button and (2) users who clicked on the button ”are currently opted out.” The FTC also alleged that Chitika’s cookie-based opt-out mechanism lasted only 10 days, and that Chitika did not inform users about the duration of the opt-out. The FTC claimed that Chitika’s statements constituted a representation that Chitika’s opt-out will last for a “reasonable period of time,” and that because 10 days is not a reasonable period, its statements were deceptive.
As part of the settlement, Chitika must include a hyperlink in every targeted ad that takes consumers to a clear opt-out mechanism. User opt outs must be effective for at least five years.
The settlement may help inform industry’s ongoing development of innovative opt-out tools for consumers to control whether information is used for targeted advertising. The Consent Order not only suggests that five years is a “reasonable” period of time for a user’s opt-out selection to last, but it also reaffirms that cookie-based opt-out methods are an acceptable means for allowing consumers to opt out of targeted adverting. Importantly, the Consent Decree carves out from the five-year effective period scenarios where a user deletes his or her cookies or takes deliberate action to disable the mechanism.