OUT-LAW gets it wrong (in my humble layman’s opinion). OUT-LAW 0, OFT 2
I don’t often disagree with OUT-LAW. They’re lawyers talking about the law. Still, there’s a first time for everything…
Two problems. First:
The Office of Fair Trading is the Government’s consumer and competition authority. That it sees no need for Government regulation in behavioural advertising is great news for online publishers and advertisers. In my view, that is good for consumers too, because it helps to keep content free.
‘Free content’ is the standard argument from the marketing industry. But I just don’t buy it. We’ve had advertising for, well, yonks. Never before have we had targeted advertising in the current sense; but this lack of targeting hasn’t stopped companies advertising. Targeting was simply choosing the right magazine, newspaper, television programme or billboard best suited to the demographics of the product. This model translates directly to the internet in terms of choosing which websites to advertise on. So the argument that without behavioural advertising we would not have free content on the internet is spurious, false and disingenuous.
What surprised me more was another, less significant feature of the report: the OFT says that viewing a website is a transactional decision for the purposes of the Consumer Protection (Unfair Trading) Regulations, known as the CPRs.
The CPRs came into force in 2008. They say that if a consumer changes its mind in relation to a transaction as a result of misinformation or lack of information, there can be an offence, punishable by anything up to two years in prison for the directors of the company.
The report says:
“The OFT interprets transactional decision widely and believes it encompasses, for example, the decision to view a website. So not informing a consumer about the collection of information about their browsing behaviour could breach the CPRs if that knowledge would have altered their behaviour, perhaps by dissuading them from visiting that website.”
The OFT is not just saying that its worried about information or a lack of information influencing a decision to buy something on a website; it’s talking about it influencing a decision just to visit a site, whether the site sells things or not.
In my view, this goes further than the CPRs intended. The CPRs define “transactional decision” but the definition is focused, as you might expect, on transactions.
Well, that seems a perfectly reasonable conclusion from OFT. If I am told that visiting a particular website is dependent upon me accepting that data would be extracted for the purpose of building a profile for targeted advertising, then I simply won’t go there. It seems to me that OFT is trying to interpret the law in favour of the consumer and that seems to be in line with its raison d’etre:
The OFT’s mission is to make markets work well for consumers. We achieve this by promoting and protecting consumer interests throughout the UK, while ensuring that businesses are fair and competitive.