On November 21, 2012, the UK Committee of Advertising Practice (“CAP”) released new rules on online behavioral advertising (“OBA”). CAP is the UK body which writes and maintains the UK advertising codes, which are administered and enforced by the UK Advertising Standards Authority (“ASA”).
The New CAP Rules
The new OBA rules (contained in Appendix 3 of the CAP Code) contain four new requirements for marketers and third parties engaging in OBA. These organizations must:
- Provide clear and comprehensive notice on their own website of their collection and use of web viewing behavior, and provide an opt-out mechanism for consumers. (Rule 31.1.1)
- Provide clear and comprehensive notice in or around advertisement displays of their collection and use of web viewing behavior, and provide an opt-out mechanism for consumers. (Rule 31.1.2)
- Not create OBA that is designed to target children age 12 and under. (Rule 31.1.3)
- Obtain prior explicit consent to use “deep-packet” inspection techniques that collect all or substantially all web viewing data for the purposes of OBA. (Rule 31.2)
EU Restrictions on Cookies and OBA
Article 5(3) of the amended EU e-Privacy Directive (Directive 2002/58/EC as amended by Directive 2009/136/EC) requires that users must be provided with “clear and comprehensive information” and must give their prior informed opt-in consent before any cookies are set on their “terminal equipment” (e.g., computer or mobile device). The previous EU cookies rules (the unamended Directive 2002/58/EC) only required notice and an opt-out mechanism. EU Member States were required to implement the new opt-in cookie rule into national law by May 25, 2011.
The Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2011 implemented the new rule in the UK by the deadline; however, the UK Information Commissioner’s Office (“ICO”) gave organizations a 12-month grace period (which expired on May 26, 2012) to comply with the new rules.
Pan-European Industry Initiative
The new CAP rules are part of a wider pan-European industry initiative, the European Advertising Standards Alliance (“EASA”) Best Practice Recommendation on Online Behavioural Advertising and the EU Industry Framework. The EASA Best Practice Recommendation, released in April 2011, was criticized by the Article 29 Working Party in its Opinion WP 188 as the rules generally require advertisers to provide notice and an opt-out mechanism, which does not reflect the opt-in requirement of the amended EU e-Privacy Directive.
Analysis of the CAP Code
Like the EASA Best Practice Recommendation, the new CAP rules are likely to be subject to criticism as they only require prior opt-in consent for so-called “deep-packet” inspection technologies. The ICO has made clear that opt-in consent is always required, except where the cookies fall within the narrow “strictly necessary” exemption. Further, although CAP envisions that most marketers and third-party advertisers will meet the CAP requirement to provide “clear and comprehensive notice” through “an icon in the corner of the display advertisement,” a small icon may not, in fact, provide users with clear and comprehensive information about the collection and use of their browsing activities since the ICO has previously emphasized that organizations must be “clear, honest, open and upfront about cookies.” Further, the new CAP rules do not apply to OBA on mobile devices, contextual advertising, web analytics, ad reporting or ad delivery, first-party OBA, and the use of OBA in “rich media, in-stream videos online or on mobile devices.” The new rules do not come into effect until February 4, 2013 (almost two years after the change in the law on cookie rules). It should be noted, however, that the new CAP rules explicitly state that they are “not designed to provide compliance with the law.” UK advertisers, subject to ASA’s authority, are therefore required to comply both with the new CAP rules and with applicable UK laws.
Search
Recent Posts
Categories
- Behavioral Advertising
- Centre for Information Policy Leadership
- Children’s Privacy
- Cyber Insurance
- Cybersecurity
- Enforcement
- European Union
- Events
- FCRA
- Financial Privacy
- General
- Health Privacy
- Identity Theft
- Information Security
- International
- Marketing
- Multimedia Resources
- Online Privacy
- Security Breach
- U.S. Federal Law
- U.S. State Law
- U.S. State Privacy
- Workplace Privacy
Tags
- Aaron Simpson
- Accountability
- Adequacy
- Advertisement
- Advertising
- American Privacy Rights Act
- Anna Pateraki
- Anonymization
- Anti-terrorism
- APEC
- Apple Inc.
- Argentina
- Arkansas
- Article 29 Working Party
- Artificial Intelligence
- Australia
- Austria
- Automated Decisionmaking
- Baltimore
- Bankruptcy
- Belgium
- Biden Administration
- Big Data
- Binding Corporate Rules
- Biometric Data
- Blockchain
- Bojana Bellamy
- Brazil
- Brexit
- British Columbia
- Brittany Bacon
- Brussels
- Business Associate Agreement
- BYOD
- California
- CAN-SPAM
- Canada
- Cayman Islands
- CCPA
- CCTV
- Chile
- China
- Chinese Taipei
- Christopher Graham
- CIPA
- Class Action
- Clinical Trial
- Cloud
- Cloud Computing
- CNIL
- Colombia
- Colorado
- Commodity Futures Trading Commission
- Compliance
- Computer Fraud and Abuse Act
- Congress
- Connecticut
- Consent
- Consent Order
- Consumer Protection
- Cookies
- COPPA
- Coronavirus/COVID-19
- Council of Europe
- Council of the European Union
- Court of Justice of the European Union
- CPPA
- CPRA
- Credit Monitoring
- Credit Report
- Criminal Law
- Critical Infrastructure
- Croatia
- Cross-Border Data Flow
- Cyber Attack
- Cybersecurity
- Cybersecurity and Infrastructure Security Agency
- Data Brokers
- Data Controller
- Data Localization
- Data Privacy Framework
- Data Processor
- Data Protection Act
- Data Protection Authority
- Data Protection Impact Assessment
- Data Transfer
- David Dumont
- David Vladeck
- Delaware
- Denmark
- Department of Commerce
- Department of Health and Human Services
- Department of Homeland Security
- Department of Justice
- Department of the Treasury
- Disclosure
- District of Columbia
- Do Not Call
- Do Not Track
- Dobbs
- Dodd-Frank Act
- DPIA
- E-Privacy
- E-Privacy Directive
- Ecuador
- Ed Tech
- Edith Ramirez
- Electronic Communications Privacy Act
- Electronic Privacy Information Center
- Elizabeth Denham
- Employee Monitoring
- Encryption
- ENISA
- EU Data Protection Directive
- EU Member States
- European Commission
- European Data Protection Board
- European Data Protection Supervisor
- European Parliament
- Facial Recognition
- Facial Recognition Technology
- FACTA
- Fair Information Practice Principles
- Federal Aviation Administration
- Federal Bureau of Investigation
- Federal Communications Commission
- Federal Data Protection Act
- Federal Trade Commission
- FERC
- FinTech
- Florida
- Food and Drug Administration
- Foreign Intelligence Surveillance Act
- France
- Franchise
- Fred Cate
- Freedom of Information Act
- Freedom of Speech
- Fundamental Rights
- GDPR
- Geofencing
- Geolocation
- Georgia
- Germany
- Global Privacy Assembly
- Global Privacy Enforcement Network
- Gramm Leach Bliley Act
- Hacker
- Hawaii
- Health Data
- Health Information
- HIPAA
- HIPPA
- HITECH Act
- Hong Kong
- House of Representatives
- Hungary
- Illinois
- India
- Indiana
- Indonesia
- Information Commissioners Office
- Information Sharing
- Insurance Provider
- Internal Revenue Service
- International Association of Privacy Professionals
- International Commissioners Office
- Internet
- Internet of Things
- IP Address
- Ireland
- Israel
- Italy
- Jacob Kohnstamm
- Japan
- Jason Beach
- Jay Rockefeller
- Jenna Rode
- Jennifer Stoddart
- Jersey
- Jessica Rich
- John Delionado
- John Edwards
- Kentucky
- Korea
- Latin America
- Laura Leonard
- Law Enforcement
- Lawrence Strickling
- Legislation
- Legislature
- Liability
- Lisa Sotto
- Litigation
- Location-Based Services
- London
- Madrid Resolution
- Maine
- Malaysia
- Markus Heyder
- Maryland
- Massachusetts
- Mexico
- Microsoft
- Minnesota
- Mobile App
- Mobile Device
- Montana
- Morocco
- MySpace
- Natascha Gerlach
- National Institute of Standards and Technology
- National Labor Relations Board
- National Science and Technology Council
- National Security
- National Security Agency
- National Telecommunications and Information Administration
- Nebraska
- NEDPA
- Netherlands
- Nevada
- New Hampshire
- New Jersey
- New Mexico
- New York
- New Zealand
- Nigeria
- Ninth Circuit
- North Carolina
- Norway
- Obama Administration
- OECD
- Office for Civil Rights
- Office of Foreign Assets Control
- Ohio
- Online Behavioral Advertising
- Opt-In Consent
- Oregon
- Outsourcing
- Pakistan
- Parental Consent
- Paul Tiao
- Payment Card
- PCI DSS
- Penalty
- Pennsylvania
- Personal Data
- Personal Health Information
- Personal Information
- Personally Identifiable Information
- Peru
- Philippines
- Phyllis Marcus
- Poland
- PRISM
- Privacy By Design
- Privacy Policy
- Privacy Rights
- Privacy Rule
- Privacy Shield
- Protected Health Information
- Ransomware
- Record Retention
- Red Flags Rule
- Rhode Island
- Richard Thomas
- Right to Be Forgotten
- Right to Privacy
- Risk-Based Approach
- Rosemary Jay
- Russia
- Safe Harbor
- Sanctions
- Schrems
- Scott Kimpel
- Securities and Exchange Commission
- Security Rule
- Senate
- Serbia
- Service Provider
- Singapore
- Smart Grid
- Smart Metering
- Social Media
- Social Security Number
- South Africa
- South Carolina
- South Korea
- Spain
- Spyware
- Standard Contractual Clauses
- State Attorneys General
- Steven Haas
- Stick With Security Series
- Stored Communications Act
- Student Data
- Supreme Court
- Surveillance
- Sweden
- Switzerland
- Taiwan
- Targeted Advertising
- Telecommunications
- Telemarketing
- Telephone Consumer Protection Act
- Tennessee
- Terry McAuliffe
- Texas
- Text Message
- Thailand
- Transparency
- Transportation Security Administration
- Trump Administration
- United Arab Emirates
- United Kingdom
- United States
- Unmanned Aircraft Systems
- Uruguay
- Utah
- Vermont
- Video Privacy Protection Act
- Video Surveillance
- Virginia
- Viviane Reding
- Washington
- WeProtect Global Alliance
- Whistleblowing
- Wireless Network
- Wiretap
- ZIP Code