With the May 26th deadline for enforcement of the revised ePrivacy Directive fast approaching, representatives of the Affiliate Marketing Council discovered the latest state of play at a recent Government hosted event.
Held at the Department of Culture, Media and Sport in conjunction with regulator The Information Commissioner’s Office, it also gave attendees the chance to grill those who are responsible for enforcing the Directive.
The event kicked off with a Keynote from Ed Vaizey, Minister for Culture, Communications and Creative Industries, in which he reiterated the Government’s ‘light touch’ approach as outlined in an open letter to industry in May 2011.
As such there was nothing new to report and it was left to Information Commissioner Christopher Graham to build on the Half Term report issued in November last year. In that statement one of the overriding messages was that industry “needed to do better” and this event gave the ICO the opportunity to talk about some of the practical measures it is encouraging.
What was certainly good to hear were Graham’s assurances that come May 26th they would be focusing on companies and areas of industry that had demonstrated a lack of willingness to do anything to achieve compliance. This is positive for affiliate marketing as we’ve been working on practical solutions for the past eighteen months. Over that time the Affiliate Marketing Council has created and maintained a legislation committee that in turn launched a Five Point Plan designed to tackle the issues the Directive has thrown up.
Most recently the AMC launched a Consumer Transparency Framework for publishers, receiving positive feedback from industry regulators as a consequence.
On specifics, Graham reiterated that browser settings whilst crucial are part of the answer, not the full solution. He also offered further guidance on analytics: they are not exempt as it would be hard to convince anyone they were strictly necessary however they are not a high priority for the ICO.
Over the next few months the ICO will be collating and accessing efforts from across the digital ecosystem to showcase. Specific examples designed to inform and obtain informed consent from consumers launched by BT and DeliaOnline were discussed by later speakers.
For now, Graham concluded there were many gaps and the ICO needed more evidence of good practice. They reassured those in the audience they would flag these in the belief that good practice would help raise overall standards and create a more uniform approach by companies. Ultimately they feel that we will reach a stage whereby companies’ reputations will suffer if they aren’t offering effective solutions: the more consumers are exposed to good practice, the harder it will be for bad practice to persist.
The implied consent remit
An additional area that the ICO will be offering guidance on is the concept of ‘implied consent’. This is a really interesting area for some affiliate marketers as it could feasibly be argued, for example, that the relationship a cashback site has with its consumers is an honest and open one based on the mutual understanding that there is a tracking mechanism in place in order for consumers to receive their reward. What Graham made perfectly clear is that any concept of implied consent is not an excuse to do nothing, more it is about how trusted the relationship is that exists between websites and the consumers who use them.
Following Graham’s insights a range of speakers talked about what industry is doing. The IAB showcased the Online Behavioural Advertising initiative; Barclays explained what procedures they have followed and the ICC launched their technical solution for business. This latter example was interesting as the speaker, Mike Bond, claimed it has been interpreted in full by BT.com on their homepage. Georgina Nelson, legal counsel for Which? sounded a salutary note about behaviourally targeted advertising and whether it was really working within the spirit of the law.
The challenges of behavioural advertising
This for me encapsulates the challenges we face as affiliate marketers. The area of advertising under most scrutiny is anything behavioural in nature: our challenge is to educate stakeholders and consumers alike that we’re actively seeking solutions but occupy a very different area of digital advertising.
Don’t forget you can follow the work of the AMC on the blog. Affiliate Window and buy.at will also be issuing supplementary guidance in due course.