Determann's Field Guide to Data Privacy Law: International Corporate Compliance, Second Edition
Data privacy A–Z
A – Advertising
Collection and use of personal data for advertising purposes is valuable, common and increasingly controversial.
Direct marketing involves consumers receiving phone calls, email, text messages, postal mail or other marketing communications that are directly addressed to individuals. Advertisers and their service providers need to ensure that they:
• Obtain the consumer’s contact information legally. If sourced from address
trading businesses, the legality of collection and transfer should be
• Are permitted to use the data for marketing purposes. Specifically, the
consumer must have received prior notice or granted consent, if and where
legally required, and no contrary commitments can have been made in the
past, e.g., promises in website privacy statements or service agreements that
data will be used only to provide services.
• Employ a method of communication and include content that is allowed
under applicable anti-spam laws (see U – Unsolicited Communications).
Behavioral or targeted advertising
Behavioral or targeted advertising involves companies building consumer profiles with extensive details on the interests and activities of individuals, which may include name and contact information (e.g., loyalty programs) or not (e.g., browser tracking profiles, see T – Tracking). Collection of the relevant data (e.g., through web tracking) requires the consumer’s prior, informed, express consent under laws in Europe, although in practice, a notice and opt-out system has evolved.
Sweepstakes often involve companies asking for contact information and other personal data, which is not problematic so long as they need and use such data only to administer the contest (e.g., determine and notify winners, enforce exclusion rules regarding employees and their relatives, etc.). But if companies want to use such data for other purposes (e.g., to create a mailing list), the data may become viewed as a wager and turn an otherwise legal sweepstake into an illegal lottery, unless participants are offered an alternative means of entry whereby they do not have to provide the data or consent to marketing and participants are notified that providing the data is voluntary and does not increase the chances of winning.
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