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Inside Privacy Updates on Developments in Global Privacy & Data Security from Covington & Burling LLP

OBA Accountability Program Issues Significant Decisions

Posted in Advertising & Marketing, Online, United States

On Monday, the Online Interest-Based Advertising Accountability Program, which monitors compliance with the Self-Regulatory Principles for Online Behavioral Advertising, issued a decision finding that the auto company Kia had failed to adhere to the Principles.  The Accountability Program also issued decisions stating that Kia’s ad agency–and the ad network the agency had used to place Kia’s ads–also had failed to comply with the Principles

The decisions state that representatives of the Accountability Program visited Kia’s website and later were shown Kia ads on non-affiliated sites, suggesting that the ads had been targeted based on the representatives having visited kia.com.  (In other words, the representatives appear to have been “retargeted.”)  The targeted ads, however, were not accompanied by “enhanced notice,” which the decisions describe as “a clear, meaningful, and prominent link” (such as the widely used AdChoices Icon) that “directs the consumer to information about the [advertiser’s or other third party’s] OBA data collection and use practices and an opportunity to exercise choice” with respect to those practices.  This, the decisions assert, violated the Principles’ Transparency requirement. 

Although not the first decision issued by the Accountability Program, the Kia decision may be the most significant.  It is the first decision issued against a major advertiser; previous cases had focused on ad networks, DSPs, and data management companies.  The case also marked the first time the Accountability Program has taken action against multiple companies involved in the same ad campaign.  The Program’s decision to do so underscores the Digital Advertising Alliance’s position that the Self-Regulatory Principlesapply to actors across the advertising ecosystem.  Finally, it is noteworthy that Kia apparently had not represented (on its website or elsewhere) that it would comply with the Principles. That the Accountability Program nonetheless chose to take action against the company shows that any company that engages in OBA (as that term is defined in the Principles) may be monitored for compliance with the Principles.