Schroder Brooks Law Firm, PLC



Data Driven, Privacy Sensitive – Ad Law 2019

The overarching theme this year at the Association of National Advertiser’s Annual Marketing Law Conference was Data. How we use it, how we gather it, what is its current definition (which may depend on what country you live in), how much do we willingly share, how much do we unwillingly share, and ultimately, who is responsible when something goes wrong with that Data.

With the emergence of the General Data Privacy Act (“GDPR”) and now in the US, the California Consumer Privacy Act (“CCPA”) Act, which by all accounts is even more cumbersome than the GDPR, the battle between privacy and data will eventually turn our attention to some sort of national regulation. No one wants fifty separate privacy rules. The GDPR has already caused some businesses to halt growth because of compliance costs – imagine what fifty separate laws would do to creative and other industries that survive on reaching consumers through different channels which require the use of consumer data.

This focus makes it more and more important that all parties involved in the advertising and marketing process – agencies, marketers, publishers, and consumers alike – are aware of the demons lurking out there in the world of data and privacy. Bots, fraudulent and false impressions, data breaches, consent requirements, placement of programmatic ads. These issues, if not addressed, can result in not just consumer complaints and bad PR but legal consequences as well. Even the most airtight indemnity clause between parties to a contract cannot keep regulators away.

Creative decisions that were traditionally made by just the “creative team” or by a hired agency can’t be made in a vacuum anymore because these decisions aren’t just creative decisions. They could affect every aspect of your business or your client’s business. The FTC has increasingly gone after agencies who didn’t keep their clients in check when it came to regulatory compliance. Understanding what to ask – regardless of whether you are a marketer or an agency – in this data driven but privacy sensitive climate is going to be key to mitigating risk.

Addie Johnson