Thursday, 28 January 2010

Waiting for the cookies to crumble

During 2009 behavioural advertising stealthily crept onto my legal radar. Behavioural advertising on the internet involves a search engine or website operator displaying advertisements to a user based on that user’s previous internet browsing history. This process is made possible by cookies which track a user’s journey through the world wide web and send data to a search engine or website operator which in turn then determines the content to display to that user based on their journey so far. The purpose is to serve more relevant ads to a user and of course to increase conversion.

My article for Latitude Group, Taking the Biscuit: Cookie Law Gets Tough, back in November explains how some recent legislative changes will now challenge the manner in which a website operator will have to provide a user with information about how their cookies will monitor that user’s journey on that website and it will also require the operator to obtain the user’s consent for that activity. The general purpose of the change would seem to be that users are fully informed and maintain some control over who uses their browsing history and how.

To date, I’m pleased to see that the industry’s approach to behavioural advertising more widely has been responsible and transparent. The Internet Advertising Bureau collaborates with industry players to promote transparency, user choice and education. The body has established a Code of Good Practice which is well subscribed to (see here for the IAB’s Your Online Choices website). Google is also particularly keen to show transparency; it recently improved the way it serves Gmail behavioural and contextual advertising so that the ads which it displays are not only reflective of the content of the email in current view, but also of the content of recent messages received in the same in-box. Credit to Google, they provide detailed information and strong assurances that the new practice requires no human involvement and that all ads are both entirely computer generated and family-safe (see here for How Gmail Ads Work). Google’s commitment to both privacy (for its customers) and transparency (of its practices) is underlined in its response to International Data Privacy Day today in its Google’s Privacy Principles blogpost.

However, with an OFT market study into online behavioural advertising and customised pricing already well under way and an awareness of legal and ethical challenges growing in this area, the lawyers amongst us will feel a lot better once we’ve got some “official guidance” to get our teeth into in terms of both the wider issues raised in behavioural advertising and, of course, our tasty cookies.

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