Deadline is Set for Enhanced Notice in Online Interest-Based Video Ads

The Online Interest-Based Advertising Accountability Program ("Accountability Program"), the enforcement program run by the Better Business Bureau (BBB), announced that the time has come for companies to give enhanced (just-in-time) notice to consumers in online interest-based (behavioral) video advertisements.  As of April 1, 2018, the Accountability Program will require companies to provide consumers enhanced notice with every video ad roll (mobile and desktop) that target to a consumer on the basis of their perceived interests.  The date was announced this week in a press release and Compliance Warning. The enhanced notice requirements that will be enforced by the Accountability Program are based on the Digital Advertising Alliance ("DAA") Self-Regulatory Principles, which consist of four separate documents ("DAA Principles").  The DAA is a non-profit organization led by advertising and marketing trade associations and establishes and enforces responsible privacy practices for digital advertising.  It also developed the AdChoices Icon which is commonly used in online interest-based (behavioral) ads as a form of enhanced notice. Genie Barton, VP of Digital Advertising at the Council of Better Business Bureaus is quoted in the Accountability Program press release as saying, “As we move from one medium to another, the DAA and industry have worked together to implement our guidance, first to mobile devices, then in the cross-device context, and now in video advertising.”

Explaining why it has yet to enforce enhanced notice for interest-based video advertisements, the Accountability Program stated in the Compliance Warning that this is a technically complex industry and it took some time for companies to move to the type of video players that provide support for an enhanced notice marker.  It explained, however, that the industry has matured, many video ads already display the AdChoices Icon, and it is now an estimated 13.7 billion dollar market.  Thus, "it is commercially reasonable to expect the digital advertising ecosystem to be able to implement the DAA Principles in [interest- based video ads]."

The Accountability Program stated in the Compliance Warning that it does not require any particular technical standard or method for complying, but "[t]he enhanced notice must alert consumers to the fact that a video ad is interest based and provide easy access to the company’s disclosures of its [interest-based advertising] practices as well as its [interest-based advertising] opt out." It is "willing to work with companies on a compliance solution that is commercially reasonable given their business model and technology." The Accountability Program has set up a system for companies that find it "infeasible" to come into compliance by the April 1st deadline. Those companies should notify the Accountability Program with a factually detailed request for an extension and specify the date by which it can come into compliance. The Compliance Warning also contains some general guidance for companies engaged in interest-based advertising through video ads.

The Accountability Program is serious about enforcement, this week it also announced that it brought its first case enforcing the DAA's Cross-Device Guidance (see here for the decision).  The case is against LKQD Technologies, Inc., a video advertising infrastructure company.  Although the case is not specifically tied to the exact subject matter of the Compliance Warning, it shows that the Accountability Program is following companies involved in online interest-based video advertising and is willing to take action.