Big Data Meets Big Content: Advertisers Issue Best Practices Against Online Piracy

Published On May 11, 2012 | By Ken Dreifach | Big Data, Intellectual Property

HTTPSSADA1Last week, the Association of National Advertisers (ANA) and the American Association of Advertising Agencies (4A’s) took a stance against pirated content sites by issuing a “Statement of Best Practices to Address Online Piracy and Counterfeiting.”  Combined, these two groups represent most of the major brands and ad agencies that ultimately fund online ads.

As a result, exchanges and data platforms may start to see provisions in media placement agreements and IOs that reflect these Best Practices – for instance, provisions requiring them to comply (or to have their network partners comply) with take-down requests, and even to offer advertisers refunds for ads placed on so-called “rogue” websites.

The Associations said that the Best Practices were designed to prevent the advertising industry from “providing financial support to, or otherwise legitimizing ‘rogue’ Internet sites” – which they defined as sites “whose primary and apparent purpose is to steal or facilitate theft of . . .  intellectual property.”  The Associations distinguished such sites from “legitimate social media or user-generated content sites,” even if those sites occasionally display infringing content.  The Best Practices arrive on the heels of an allegation earlier this year in United States v. Dotcom et al. that some $25 million of that site’s revenues (albeit a minority of total revenue) were from online ad sales.  And last year, GroupM announced a blacklist of some 2000 websites to be cut off from ad sales of its brand clients.

The Associations effectively are inviting content owners to identify such sites:  they noted that “in most instances such sites will initially – but not conclusively — be identified by intellectual property owners.”

The Associations specifically identity three specific “Best Practices” for the online advertising ecosystem to implement:

  1. Contractual Measures:  Media placement agreements and insertion orders (IOs) between advertisers and ad placement networks and platforms (the Associations use the term “intermediaries”) must have language requiring commercially reasonable measures that prevent ads from being placed on “rogue” publisher sites;
  2. Take Down Measures:  Networks and platforms that place ads must have a way to remove or exclude such sites from their services, and promptly terminate ad placements on these sites, when rights holders or advertisers provide reasonable, detailed notices;
  3. Refunds:   Refunds or credits must be given to advertisers for “fees, costs and/or value associated with non-compliant ad placements.”

The Best Practices and accompanying announcement, is available in full, at http://www.ana.net/content/show/id/23408.

About The Author

Ken counsels clients on complex issues involving information privacy and data law, online liability, consumer regulatory and gaming law, including regulatory response, and adherence to self-regulatory guidelines for online advertising. Ken has had more than twenty years of experience in high-profile regulatory, in-house and private practice roles, including as Chief of the New York Attorney General’s Internet Bureau. He is one of the nation’s leading authorities on the relationship between emerging advertising technologies and online privacy.

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