Is Silence Consent? Not When it Comes to Targeted Advertising!

July 9th, 2015

Targeted Advertising and Privacy Issues

MAUDE PAPILLON | Québec

You’re on the internet looking for flights to California and two days later an ad on social media makes you an interesting offer on a San Francisco hotel room. This is no coincidence. Your computer is the source of a great deal of information about you. Specifically, your IP address records all the sites you’ve visited, the research you’ve done and the information you received when you’ve subscribed to a site or made an online purchase. This information is kept and analysed by third parties, often without your knowledge, usually to create your profile and determine what advertising you are most likely to be interested in. That’s what’s called “targeted marketing!”

Bell Canada’s “Relevant Ads” Program

Personal information collected by an organization has huge monetary value because it can be used and sold to other businesses for advertising purposes. That’s what Bell Canada has done as part of its Relevant Ads program launched in 2013 which had the objective of building a multi-dimensional advertising profile on each of its clients based on their web surfing habits. The profile also took into account the applications that were used, the programs that were viewed and the calls that were received. By combining all this information with the data that had already been collected from clients such as the location of their homes, their credit rating, age and gender, Bell Canada was able to create very detailed profiles and sell them to participating advertisers. These advertisers could thereby provide ads that were tailored to every profile that had been generated. Clients who wished to be excluded had to explicitly express their objection to Bell Canada and if they did not do so, they were presumed to have consented.

Following the implementation of the program, Canada’s Privacy Commissioner received 170 complaints to the effect that the program violated privacy rights and was therefore illegal. In response to these many complaints, the Privacy Commissioner launched an investigation and concluded that the program was in contravention of the provisions of the Personal Information Protection and Electronic Documents Act.

The Validity of Consent

According to the Commissioner, Bell Canada’s use of the information to maximize ad revenues and to improve its clients’ online experience by virtue of targeted advertising was appropriate. However, that was not enough to make it legal. In order to use personal information and respect the law, the telecommunications behemoth had to obtain valid and explicit consent from its clients. Basing himself specifically on the sensitive nature of the information obtained and the clients’ privacy expectations, the Commissioner established that Bell Canada had not obtained sufficient consent. For this consent to be valid, the company at fault could not assume consent to use personal information on the program, based on the fact that clients had not explicitly objected. Rather, Bell Canada had an obligation to ask for express and explicit consent to participate or not in the program.

Bell Canada subsequently respected the Commissioner’s decision and terminated the program. The company announced on April 13, 2015 that the customer data would be destroyed. Apparently, Bell’s recent actions did not entirely exonerate its responsibilities toward its clients, and a $750 million class action suit has been instituted against them for privacy violations incurred as a result of the program.

Far From An Isolated Case

Advertising targeted as a function of a web user’s history is a major trend in business and is frequently part of the company’s marketing strategy. The players in the digital world are always looking for ways to attract online consumers, and targeted advertising allows them to significantly increase ad revenues. However, in light of the action instituted against Bell Canada and the conclusions drawn by the Privacy Commissioner, it is clear that a number of Canadian companies should review their confidentiality policies. Valid efforts in obtaining clients’ consent to use or legally sell the data collected for targeted advertising are of paramount significance.

How BCF Can Help

Our specialists would be pleased to provide advice on the rules concerning targeted advertising and the steps to be taken in order to comply with the requirements relating to the protection of personal information.

Maude Papillon is a member of BCF’s Internet strategic team, which offers our clients strategic advice regarding their online presence. This is a continually evolving environment which calls for the expertise of a multidisciplinary team like that of BCF.