In a recent blog which should meet with the full agree­ment of most art direc­tors and account man­agers in online adver­tis­ing agen­cies, a Lon­don-based solic­i­tor has made a com­pelling argu­ment against over-reg­u­la­tive leg­is­la­tion which may need­less­ly con­strict the busi­ness of tar­get­ed adver­tis­ing (or OBA, online behav­ioral adver­tis­ing).

Unless peo­ple want to start pay­ing for the web con­tent they cur­rent­ly enjoy free of charge cour­tesy of adver­tis­ing rev­enue, they may need to become rather more skep­ti­cal about big gov­ern­ment attempts to impede (or “reg­u­late”) behav­ioral adver­tis­ing online. The scare quotes are delib­er­ate – the mean­ing of the term “reg­u­late” is to ensure that busi­ness is reg­u­lar, not leg­isla­tive­ly obstructed.

Con­fus­ing reg­u­la­tion with obstruction

As Joanne Frears (a solic­i­tor with the com­mer­cial law firm Jef­frey Greene Rus­sell Lim­it­ed) points out, Euro­pean Union leg­is­la­tion last year imposed a ‘vol­un­tary’ code to ensure that con­sumers are rou­tine­ly told how to opt out of OBA track­ing and are also invit­ed to give clear con­sent before per­mit­ting cook­ies to track their web activ­i­ties.  Adver­tis­ers are not per­mit­ted under the code to tar­get OBA to any­one under the age of twelve years.

Last year, attempt­ing to sup­port the resis­tance data col­lec­tion, Microsoft announced a planned default “Do Not Track” sig­nal in IE10 – and was rapid­ly forced to calm fears that its pro­pos­al would dam­age the online adver­tis­ing busi­ness. Throw­ing pro­duc­tive art direc­tors and rev­enue-build­ing account man­agers onto wel­fare isn’t a good move in tough eco­nom­ic times.

Con­sumer choice?

But isn’t giv­ing con­sumers a choice always a good thing? Frears offers a more nuanced per­spec­tive, quot­ing the late and much-mourned Steve Jobs: “A lot of times, peo­ple don’t know what they want until you show it to them. Reg­u­la­tions like the EU vol­un­tary code and fads like the Do Not Track ini­tia­tive invari­ably fall down at this point.

As Frears puts it:

“They sti­fle devel­op­ment and pro­mote the sta­tus quo in an envi­ron­ment that was nev­er meant to be sta­t­ic. Research done last year by the IAB and Val­ueClick shows that at least 55% of us would rather have online adver­tis­ing tar­get­ed to us because we pre­fer not to wade through non-spe­cif­ic adver­tis­ing. Do reg­u­la­tors real­ly take us for online inno­cents, inca­pable of mak­ing a judg­ment call about whether or not to click through an ad we can tell has been tar­get­ed to us?”