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Advertising, Marketing & Promotions:
2017 Trends in Marketing Communications Law

Mobile/Digital/Programmatic >> Regulators Address Consumer Trust, Choice and Safety In Digital Marketing

April 11, 2017

Businesses and regulators are focusing on cross-device tracking, ad blocking technologies and ad fraud, with particular attention to consumer trust, choice and safety issues.

The cross-device guidance issued by the Digital Advertising Alliance (DAA) explains that consumer choice regarding multi-site and cross-app data (i) carries over to, or from, linked browsers and devices where choice is also exercised and (ii) applies to transfers of such data to non-affiliates from the corresponding device or browser where choice is exercised. The guidance also requires related privacy policy disclosures.

The Council of Better Business Bureaus and the Digital Marketing Association already have begun to enforce the guidance. Given a recent Federal Trade Commission (FTC) paper finding "very little explicit disclosure to consumers about cross-device tracking," marketers can expect continued scrutiny of cross-device tracking and related advertising activities.

The threat of ad blocking looms ever larger on publishers, marketers, and agencies, with some researchers predicting that industry losses could reach $35 billion by 2020. Research suggests that over 300 million people now block ads on mobile devices, twice as many as on desktops.

With legal remedies still uncertain, publishers are seeking practical ways to stem the tide. Approaches include withholding content or requiring payment from users employing ad blockers, prohibiting ad blocking under applicable terms of use, utilizing content that is harder to block and attempting to improve the user experience by minimizing ads' intrusiveness and increasing their relevance.

Industry stakeholders disagree on the appropriateness of using technology to block ad blockers or reinsert blocked ads, and it is likely there will be more discussion on whether these defensive technologies ultimately benefit users (by protecting the ad funding that supports content) or undermine their digital autonomy.

Finally, ad fraud continues to command the attention of the advertising industry. With ad fraud losses already estimated by the Association of National Advertisers to exceed $7 billion – the "Methbot" botnet was estimated to have cost $3-$5 million in daily video ad revenue – there has been increased activity in combating ad fraud. These efforts included criminal enforcement targeted at cyber-fraud, two new "Trustworthy Accountability Group" programs aimed at fraud and malware and an increased focus on contractual and technological protections.

Industry stakeholders likely will continue to collaborate in key areas and implement a variety of protections – whether legal, contractual or technological – alongside law enforcement to try to keep pace with a continuously evolving threat.

Key Takeaways

  • Companies tracking consumers across devices should confirm they are complying with the DAA's cross-device guidance.
  • Marketers, agencies and publishers have several practical approaches to mitigating the effects of ad blocking technologies and should carefully consider their positions regarding the use of defensive technologies to circumvent ad blockers.
  • Marketers should remain up-to-date and active in confronting ad fraud, as increasingly sophisticated threats continue to emerge.