BBB National Programs’ Privacy Watchdog Issues Compliance Warning Regarding Consent for Interest-Based Advertising

BBB National Programs’ data privacy watchdog, the Digital Advertising Accountability Program (DAAP), has issued a new compliance warning against the practice of inferring consent from a consumer’s passive use of a product or service following a notice of interest-based advertising (IBA). In this warning, DAAP reminds companies that in situations where consent is required for IBA, both a notice from the company and an active response to that notice by consumers are necessary.

DAAP monitors online and mobile advertising, enforcing the Digital Advertising Alliance’s (DAA) Self-Regulatory Principles, which provide a baseline for consumer data privacy regarding digital ads.

Under the DAA Principles, consumers must have transparency about and control over IBA. Commonly, the DAA Principles work on an “opt-out” basis, in which consumers should be given up-front indications of IBA activity linked to fuller disclosures and a means to choose not to participate in a company’s IBA practices.

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In other cases, however, the DAA Principles require companies to obtain consumers’ consent before engaging in IBA. The DAA Principles define consent as “an individual’s action in response to a clear, meaningful, and prominent notice regarding the collection and use of data for a specific purpose.” The DAA Principles specify that consent is required in situations calling for a heightened degree of consumer choice, such as the collection of precise location data or particularly sensitive data, making a material change in the use of prior-collected data, or the collection and use of data by a service provider for IBA.

Put simply, today’s compliance warning underscores the fact that inaction is not action. Companies may use notice and enhanced notice to point to a mechanism for providing consent, but such notices cannot themselves stand in for a consumer’s consent. This is because consent requires an individual’s action in response to a notice. A company’s provision of notice, without a corresponding action in response by the relevant consumer, does not pass this test. Practically speaking, then, companies should not consider a consumer’s mere continued use of a product or service after receiving notice to constitute consent.

Companies seeking guidance on developing and deploying Principles-compliant consent flows are encouraged to reach out to the Accountability Program proactively for free, confidential consultation.

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