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Online Behavioural Advertising

A LegalBytes Client Advisory by Patrick Fair, Baker & McKenzie, Sydney


In this month's edition of LegalBytes we report on the June 2010 Opinion of the EU's Article 29 Working Party in relation to behavioural advertising (Opinion). The ePrivacy Directive does not have to be made national law of EU member states until May 2011. However, the Opinion is the latest word on the regulation of behavioural advertising in the EU and provides important practical guidance for those providing online services to countries in the EU regarding the implementation of procedures and disclosures necessary to comply with Article 5(3) of the ePrivacy Directive.

The Opinion follows important developments in the US, including the US Federal Trade Commission's Staff Report; Self -Obligatory Principles for Online Behavioural Advertising published in February 2009 (Staff Report), the publication of Global Principles for Self-Regulation in Online Behavioural Advertising by the World Federation of Advertisers (WFA) and Self-Regulatory Principles in Online Behavioural Advertising published by a cross industry group comprising the American Association of Advertising Agencies, the Association of National Advertisers, the Council of Better Business Bureau's, the Direct Marketing Association and the Interactive Advertising Bureau (IAB) in the US.

The regulation of behavioural advertising is a cutting-edge issue for online privacy. It presents challenging questions regarding consumer expectations and highlights important limitations in existing privacy frameworks. It also relates to a wide range of circumstances and systems that, on one view, should not be regulated in the same way. Unfortunately, clear and significant differences are apparent between the EU and the US approach.

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