Transparency and User Choice Guidance from the Network Advertising Initiative

The Network Advertising Initiative (NAI) is a self-regulatory association of third-party digital advertising companies.  It is a nonprofit organization that maintains standards for data collection and use for online advertising and mobile advertising.

Self-regulating associations function as an alternative to governmental regulators and can often act more quickly and pragmatically than government regulators.  They have a vested interest in drafting fair rules and preventing races to the bottom.

With that in mind, the NAI recently provided guidance as to how third-party advertisers should handle issues around transparency and user choice, particularly thinking about dark patterns.  Dark patterns are of particular concern in race-to-the-bottom settings, because they are particularly distasteful.  Dark patterns consist of methods that actors use to subvert the intentions and desires of everyday people.

Dark patterns – in brief – consist of things like automatically renewing memberships, nearly impossible to cancel memberships, confusing menus, and complicated sentence structures that make you think you are rejecting the cookies, but instead are actually accepting them.  Dark patterns have been proven to be effective.  Which makes them an appealing method for some parties to use to profit through increased membership, increased cookie presence, and other means.

The recommendations that the NAI provides as the best practices for third-party digital advertisers to use to avoid the engaging in dark patterns are:

1. Complete Disclosure – Include all material terms when obtaining consent.

2. Accurate Representation of Data Collection, Use, or Sharing – Present the terms and conditions about the collection of data as well as its use and sharing in a clear and coherent way.

a. This includes not using “negative options” which requires action from the customer if they wish to avoid being billed/having their data processed.

b. This includes not misleading customers about the necessity of their data when it isn’t necessary.

3. Intuitive Disclosure – Present choices in a way that the options and alternatives are clear.

4. Seamless Cancellations – Make cancelling subscriptions easy and inform customers about how to cancel.

The NAI guidance regarding notice is that notice statements should be concise. They should include:

1. Clear and comprehensible language (without double negatives).

2. Brevity in tandem with necessity, providing all the key elements for customers to make an informed decision.

3. Full disclosure about the company’s policies and data collection practices.

4. Full disclosure of all material information.

The NAI guidance regarding choice options is that customers should be able to:

1. Make an informed, easy choice (without having to read through lengthy privacy policies).

2. Have meaningful choice. Take-it-or-leave-it may be appropriate in some circumstances, but otherwise, providing customers with meaningful choices is preferred.

3. Exercise informed consent. Neither linguistic trickery nor manipulation should be used to alter customer choices.

4. Simplify interactions. When a customer uses a new device, but is recognized as a preexisting customer, their previously determined settings should be proposed to them, rather than forcing them to start from scratch or applying default settings for their interactions with a new device.

At Clarip, we know a thing or two about dark patterns and consent management.  We can help your business comply with governmental or self-regulatory compliance obligations.  We also help businesses with automated data mapping, automated data subject request fulfillment, vendor management, and much, much more. Visit us at www.clarip.com or call us at 1-888-252-5653 to learn more.

Email Now:

Mike Mango, VP of Sales
mmango@clarip.com