Law Times

Law Times • august 10, 2015 Page 11 www.lawtimesnews.com Report offers clarity on online behavioural advertising By Julius MelniTzer For Law Times nline behavioural ad- vertising has become a popular part of the business model for many organizations, but it can also be an intrusion on privacy. The difficulty is the guidelines haven't always been clear. Clarity, however, took a giant step forward with the release in April of the federal privacy com- missioner's report on Bell Can- ada's relevant ads program. The findings followed a high-profile investigation into a revenue-gen- erating program that tracked the browsing habits and application usage of customers together with their TV viewing and calling pat- terns. Bell combined the informa- tion derived with demographic and customer account data and came up with a service that al- lowed the telecommunications giant to deliver highly targeted ads to Bell customers on behalf of third parties. "The report is a watershed moment in the evolution of [on- line behavioural advertising] in Canada," says Chantal Bernier of Dentons Canada LLP in Ottawa. "It is a milestone that clarifies the limits on [online behavioural advertising] in Canadian law, de- livered in a way that can be trans- posed to any business as a matrix for their programs." The privacy commissioner found that the core difficulty with Bell's program was its failure to provide for opt-in consent. "We felt the privacy implica- tions of the initiative were sig- nificant enough to require opt-in consent from customers," the privacy commissioner said in a statement that accompanied the report's release. But the commissioner also clarified that Bell's objective of maximizing ad revenue while improving customers' online ex- perience was a legitimate business objective. More particularly, the key takeaways from the decision, according to Bernier, include: • Although online behavioural advertising is reasonable, it's not necessary and, therefore, requires express or implied consent. • Whether express or implied consent is necessary depends on the sensitivity of the per- sonal information and the reasonable expectations of customers. • In certain cases, such as health information, sensitivity is in- herent. But sensitivity may also be contextual, and deter- mining its degree depends on such factors as the identifiers compiled as well as the infor- mation generally gathered by the organization in providing its services. • Whether an expectation is reasonable is a contextual is- sue and may depend on factors such as whether the informa- tion was collected for online behavioural advertising or another purpose; whether the service is free or dependent on advertising; whether the in- formation enables third-party or only service-provider ads; and the extent to which the company already has access to vast amounts of personal information. • Where consent is necessary, an option to withdraw at any time must be available. If that option is exercised, the profil- ing as well as the online behav- ioural advertising must stop. • Meaningful consent requires a high level of transparency, including the availability of in- formation on what data is be- ing used, how it is being used, and how it will be used in the future. • Meaningful consent isn't, however, a blank cheque. The personal information must still be within the range of what a reasonable person con- siders appropriate. Generally speaking, credit information is inappropriate as are full postal codes. • As previously established by the privacy commissioner, personal information may not be disclosed to third-party advertisers, and information compiled for online behav- ioural advertising can't be re- tained when it's no longer nec- essary to the program. • Organizations should have a specific governance frame- work to document compliance with privacy law. With these guidelines in mind, Bernier recommends that online behavioural advertising programs use as few identifiers as possible. "The ads may be less targeted, but implied consent will suffice," she says. "The program should also contain clear, detailed, acces- sible, and readily effective options that are proportionate to the sen- sitivity of the information." For his part, David Elder of Stikeman Elliott LLP in Ot- tawa believes that the privacy commissioner's legitimization of online behavioural advertising is the most important takeaway from the Bell case. "And there's no question that some of the other findings are important, especially with regard to the effect that the breadth and scope of information collected has on sensitivity and how that can give rise to the requirement for explicit consent," he says. Still, he cautions that the more particular guidance must be taken in context. "I can't help but wonder how many companies would have access to the same breadth of information that Bell had," he says. "The [privacy com- missioner] focused on Bell's abili- ty to combine surfing history and, to a lesser extent, location infor- mation from mobile services, and there are not many players capable of doing these things." Following the report, Bell can- celled the relevant ads program and then announced it would redeploy it with an eye to the rec- ommendations. "Bell was trying to do the right thing," says Elder. Plaintiffs' class action lawyers saw the issue differently. Within weeks, Sutts Strosberg LLP and Charney Lawyers launched a $750-million class action suit seeking damages for breach of privacy, breach of contract, and breach of the Telecommunica- tions Act. None of the allegations has been proven in court. LT FOCUS Start with Practical Law Canada. 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