Law Times

June 3, 2013

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Law Times • June 3, 2013 Page 9 FOCUS Behavioural ads a growing concern BY MICHAEL McKIERNAN For Law Times O nline behavioural advertising is ripe for rebranding as the industry reacts to a privacy commissioner's policy position on the issue, says an Internet and technology lawyer. The practice of delivering tailored advertising based on previous web use and inferred individual interests treads a fine line in public opinion between being creepy and convenient, and Mark Hayes, managing director of Heydary Hayes PC, says too many users emerge from the experience with an uncomfortable feeling in the pit of their stomach. "Even the name, online behavioural advertising, sounds a bit pseudoscientific and creepy. It needs a new label like personalized advertising or effective and efficient advertising. Advertisers haven't been as vocal as they should about the benefits," Hayes says. "The whole point of the exercise is to serve more effective advertising. If you're 75 years old and interested in Canasta, you don't want to be seeing ads for diapers because it's not going to interest you. Education of the public is very valuable but it can be difficult when you have privacy advocates taking an adverse position and also quite expensive." But Hayes says it will be worth the investment in the long run because privacy commissioners are taking a close look at the industry and could take a harsher approach if complaints keep coming in. "If we end up with significant restrictions on its use, it would be problematic for everyone from an economic point of view," says Hayes. Last June, federal privacy commissioner Jennifer Stoddart released a policy position on online behavioural advertising in which she cited statistics that showed consumers may be getting more receptive to the idea. A KPMG LLP study showed that in 2011, 46 per cent of Canadians were "somewhat willing" to have their online use tracked by advertisers. That was up from 36 per cent the previous year. The proportion of those "not at all willing" to allow tracking was also trending in the right direction for advertisers at 38 per cent. That was down from 49 per cent the previous year. But in the same policy document, she surprised some observers by concluding that information collected for online behavioural advertising will generally be considered personal information for the purposes of the Personal Information Protection and Electronic Documents Act. Despite the fact that advertisers generally don't identify targeted users, Stoddart said the "highly personalized" nature of the advertising and the "serious possibility of identifying affected individuals" justified the finding. However, Stoddart also decided this type of collection could be an appropriate use of personal information as long as there was "meaningful consent and . . . limitations on the types of information collected and used for profiling." Stoddart recommended an opt-out process for consent provided individuals are aware of the purpose of the collection and the parties involved. They must also be able to opt out easily, immediately, and persistently. Jonathan Mesiano-Crookston, an Internet lawyer with Goldman Hine LLP in Toronto, says the policy guideline is a very useful document for those seeking guidance on compliance with the act but expects complaints to keep flowing as web users become more aware of online behavioural advertising. "The real tension will be around whether certain advertisers listen to the guidance. Cookies can be cleared, but there are other types of tracking that are harder to clear. It could be beneficial to just keep tracking you and gain huge databases of information," he says. Major players in the online advertising industry have already reacted by forming the Digital Advertising Alliance of Canada, a self-regulatory effort to build a framework for online behavioural advertising. When fully implemented, the alliance's plan will see targeted ads marked with an icon that, when clicked, leads users to a site with more information about how the ad found its way onto their web page, which organizations hold information on their browsing habits, and how to opt out of their collection. Adrian Liu, a privacy lawyer at Borden Ladner Gervais LLP, says she's happy to see the alliance's proposals closely aligning with Stoddart's non-binding 'In Canada, I think we're falling a little behind,' says Timothy Banks. recommendations in her policy statement. "It may not capture everything or the worst outfits, but I think the industry taking steps is the best way rather than taking a legislative route." The advertising industry has a strong history of self-regulation, according to Timothy Banks, Canadian lead for privacy and security at Dentons Canada LLP in Toronto. But they need to get going with some concrete actions if they want to retain goodwill, he says. Stoddart's document dates back to almost a year ago while there has already been progress in other jurisdictions. "In Canada, I think we're falling a little behind. We don't yet have a program rolled out specifically for Canadians. In the U.K., they have developed specific rules and in the U.S., they have developed an icon that notifies users," says Banks. But Brenda Pritchard, an advertising lawyer and partner at Gowling Lafleur Henderson LLP, says the alliance's approach will be worth waiting for since it will mirror the U.S. AdChoices blue triangle icon and guidelines developed by the organization's American counterpart. "The great thing is we're going to see some uniformity," she says. LT ONTARIO LAWYER'S PHONE BOOK 2013 YOUR MOST COMPLETE DIRECTORY OF ONTARIO LAWYERS, LAW FIRMS, JUDGES AND COURTS With more than 1,400 pages of essential legal references, Ontario Lawyer's Phone Book is your best connection to legal services in Ontario. 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