“Country of origin” applies to new ASA-enforced “notice and choice” rules for third party behavioural advertising. That’s the origin of the cookie, not any ads it generates. So will Estonia be welcoming all third parties targeting UK residents? Emma Harrington reports.
Who: Osborne Clarke
When: January 2013
Where: EU
What happened:
In light of new UK rules for online behavioural advertising (“OBA”), Osborne Clarke carried out a poll of their network of European lawyers to determine whether similar rules apply throughout the
European Union.. The results of the poll were revealed in a breakfast briefing held at Osborne Clarke’s London office in late January 2013.
The new UK rules on OBA
On 4 February 2013 new rules for “third party” online behavioural advertising came into force in the UK (the “New OBA Rules”).
The New OBA Rules will become part of the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing and are separate from the revised laws relating to the use of cookies introduced by Directive 2009/136/EC. They will be administered by the UK self-regulatory advertising control body, the Advertising Standards Authority (“ASA”).
The New OBA Rules apply only where a “third party” organisation (“Third Party”) arranges with a number of websites (not owned by the
Third Party) for the web viewing behaviour of visitors to those sites to be tracked, so that targeted advertising can be displayed online to those visitors.
They do not apply to the following types of activities:
(i) contextual advertising;
(ii) web analytics;
(iii) ad reporting or ad delivery;
(iv) the collection and use of information for OBA by site operators on their own websites; or
(v) the use of OBA in rich media, in-stream videos online or on mobile devices (although the New OBA Rules may in future apply to such forms of media and devices).
There are four key features of the New OBA Rules:
Third Parties must notify web users whenever advertising appears on their screens as a result of that Third Party’s OBA activity. Such notification can be given by displaying the European Interactive Digital Advertising Alliance’s (“EDAA”) OBA “advertising option icon” (“Icon”) (see immediately below) and providing a link to relevant information about web users’ online choices (http://www.youronlinechoices.eu/).
Third Parties who have signed up to use the icon have also agreed to abide by the IAB Europe OBA Framework. This enshrines principles of notice and choice similar to the OBA Rules and involve self certification of compliance and monitoring by certified external bodies.
For enforcement and processing of user complaints of non-compliance, however, the Framework looks principally to established self -regulatory bodies to introduce such processes, which is where
the ASA OBA Rules come into play in the UK. In the US an equivalent compliant processing system is in place with the Council of Better Business Bureaus assuming the enforcement role.
Third Parties must also give web users the opportunity to opt out of receiving further such advertising as a result of that Third Party’s activities.
Advertisers whose ads appear as a result of Third Party OBA must co-operate with the ASA in identifying the Third Party in question if this is not immediately clear after a complaint is made.
“Country of Origin” will apply in cross-border cases. For example, a UK resident may complain to the ASA that ads using Third Party OBA have appeared on his computer screen without the proper information and opt out opportunity being supplied and it transpires that the responsible Third Party is based in Ireland. In such a case the ASA will refer the matter to the equivalent advertising authority body in Ireland for investigation and appropriate action.
Because of this “country of origin” approach and the chances that third parties may not be based in the UK, Osborne Clarke conducted a poll of specialist lawyers in all 26 other EU states.
The objective was to determine whether other EU states had similar regimes to those in the UK for Third Party OBA or were close to introducing one.
Poll results
The results of the poll revealed the following:
• just four EU countries (Finland, Germany, Italy and Sweden) already have a regime in place which is similar to the New OBA Rules or will introduce one imminently;
• four EU countries (Austria, Greece, Ireland and the Netherlands) are likely to have a regime similar to the New OBA Rules in place within the next eighteen months;
• eighteen EU states have yet to show any significant signs of movement towards a self-regulatory regime similar to the New OBA Rules (Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, France, Hungary, Latvia, Lithuania, Luxembourg, Malta, Poland, Portugal, Romania, Slovakia, Slovenia and Spain); and
• of the EU countries which have (or are likely to have within the next eighteen months) a regime similar to the New OBA Rules in place, only the Finnish, German and Irish local counsel have indicated that they expect the “country of origin” principle to be adopted(at least in practice).
Why this matters:
The poll results show that many EU countries are at different stages of developing and implementing rules on Third Party OBA which are backed up by a regulatory body prepared to investigate complaints of non-compliance.
The Committee of Advertising Practice has indicated that the “vast majority” of Third Parties operating in this space have signed up to the EDAA “OBA Framework” and licensed the Icon.
However, given that the “country of origin” principle applies in the UK and will probably apply in most other EU states, it is notable that many EU jurisdictions did not have a regime similar to the New OBA
Rules in place as of 4 February 2013, and many not even within the next eighteen months.
This could mean that where a complaint is made to an authority in one country in relation to OBA carried out by a Third Party based in another country, that Third Party will to all intents and purposes be immune from regulatory enforcement action, thus leaving many complaints with a cross-jurisdictional element unresolved.
