Surveillance advertising: how did the advertising industry authorize this label?


Data-driven thinkingis written by members of the media community and contains fresh insights into the digital revolution in media.

Today’s column is written by Gary Kibel, a partner in the privacy/data security and advertising/marketing practice groups to Davis+Gilbert.

When brands need to better position their products and services, they turn to the advertising industry. When a company feels the public is misinterpreting or misleading about its practices, it turns to the advertising industry.

Advertising industry professionals are the experts at developing memorable slogans, jingles, phrases and encouraging consumer actions.

So how did the advertising industry license the term “supervised advertisingto gain a foothold, not just with aggressive privacy advocates, but with lawmakers and regulators? The results could be significant if seemingly innocuous, data-driven marketing practices are removed by law.

To be clear, there are absolutely some data practices that are scary, go beyond simple ad targeting, and should be subject to regulation. However, the entire data-driven marketing industry is now grappling with this new phrase. Who wouldn’t be scared off by so-called surveillance advertising?

A privacy advocacy group recently asked the Federal Trade Commission to engage in developing rules to control what it calls surveillance advertising. But rather than acknowledging that this phrase is too broad and somewhat misleading, the FTC has gladly repeated and even adopted it.

In Congress, a bill was recently introduced called the “Surveillance Advertising Ban Act of 2022.” The bill would ban certain ads simply because they are targeted to personal information and give consumers (i.e. class action lawyers) a private right of action to sue.

This type of method – labeling a seemingly mundane practice with a phrase that evokes a strong negative connotation – is often used in politics and is very often successful.

Politicians, for example, seek to associate derisory nicknames with the opposition: Tricky Dicky, Crooked Hillary, Lying Ted, etc. Who would not be scandalized by a death tax! While in reality less than 1% of estates in the United States are subject to estate taxes, the concept of a death tax is getting a strong reaction from many and has led to the legislation despite the limited impact it has on the lives of most Americans.

In other words, the growing association between “data-driven” and “surveillance” is a problem.

The marketing industry is all about influencing people. It is time for the industry to step up and take a number of steps. First, the industry should clearly differentiate between reasonable advertising practices and objectionable tactics and clearly explain the economic benefits of data-driven marketing. Stakeholders should also work closely with regulators and legislators to dissuade them from complying with reasonable privacy laws.

It is possible for consumers to have more control over their personal information without prohibiting effective and reasonable marketing practices. What is unacceptable is for the advertising industry to be outwitted by a better marketing campaign.

Follow Gary Kibel (@GaryKibel), Davis+Gilbert LLP (@dglaw) and Ad Exchange (@adexchanger) on Twitter.


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