New Canadian Policy Position on On-Line Behavioural Advertising

by Dentons
Contact

[author: ]

The Office of the Privacy Commissioner of Canada (OPC) has released a more detailed policy position regarding on-line behavioural advertising. This is a must-read for companies conducting on-line behavioural advertising strategies in Canada.

The OPC defines on-line behavioural advertising as advertising that uses information regarding the multiple websites that a person has visited and will usually involve advertisements on multiple websites. The OPC gives the following example: “a user has visited websites about pets in the past, then ads related to pets might be shown on various web sites, even sites that are not related to pets (e.g., an online newspaper).” On-line behavioural advertising differs from 1st party advertising where the organization’s advertising is based solely on the profile of an individual with whom that organization has a relationship and is not based on tracking the individual across websites.

Some highlights from the position paper:

  • The OPC will generally consider information collected during on-line behavioural advertising to be personal information. The OPC acknowledges that some information does not appear at first glance to be personal information when segmented. Nevertheless, the OPC reaches the default position that the information that is collected is personal information on the basis that (1) “the purpose behind collecting information is to create profiles of individuals that in turn permit the serving of targeted ads” and (2) the nature of on-line behaviour advertising is such that it involves “powerful means [...] for gathering and analyzing disparate bits of data and the serious possibility of identifying affected individuals”; and, perhaps circularly, (3) the result of on-line behavioural advertising is “highly personalized”.
  • On-line behavioural advertising is not an unreasonable use of personal information. The OPC acknowledges that the model for the commercial websites requires, in many cases, consumers accept advertising in return for access to free websites. However, the OPC also states that submission to on-line behavioural advertising is not a term or condition of use of the Internet. Advertisers must obtain meaningful consent, limit collection and safeguard information in accordance with Canadian privacy legislation.
  • Opt-out consent may be acceptable. In order to rely on opt-out consent, advertisers should meet what are essentially three conditions.
    1. Clear, upfront disclosure of the purposes of on-line behavioural tracking. The disclosure cannot be “buried” in a privacy policy. The OPC is encouraging use of the functionality of websites to deliver information in layered disclosure, interactive media or through banners.
    2. Individuals must have the ability to easily op-out of the practice. Ideally this is to occur before or at the time the information begins to be collected. The opt-out technology must permit the opt-out to be immediate and persistent. Consumers can’t be required to send an e-mail or snail mail request that will be dealt with in days.
    3. The information collected should be limited and should be destroyed or de-identified as soon as possible. The OPC wants to put sensitive information (examples include health/medical information) off-limits. Information should not be kept indefinitely but have a time-horizon and destroyed or de-identified.
  • Technologies that do not permit an individual to opt-out easily cannot be used. If an individual cannot control the technology by opting-out easily or would have to take extraordinary measures, then the OPC’s position is that they should not be used. Essentially, these technologies do not offer any meaningful way to withdraw consent as is required by Canadian privacy laws.
  • Personal information from young children should not be collected through on-line behavioural advertising. Older children’s consent must be meaningful although the OPC recommends against on-line behavioural tracking of all children. The OPC’s position is that it is difficult to obtain meaningful consent for young children (even from their parents). In terms of older children, the OPC’s position is that the disclosure and manner in which consent is obtained must be meaningful for the targeted age-group and the context.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Dentons | Attorney Advertising

Written by:

Dentons
Contact
more
less

Dentons on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!