EC chief will sanction eavesdropping online if admen agree to behave themselves

October 22, 2011

Ever heard of Robert Madelin? The chances are you have not. Don’t worry, it won’t hold you back in life. Unless you happen to be a major advertiser or senior advertising executive. In which case, you should be ashamed of your ignorance.

Forget the Bailey Report, forget erotically charged images on posters. The frontiers of commercial freedom have already moved to a more strategic battle-front. One where the weapons of choice are electronic spies and surveillance.

If advertisers win this battle, the prize is very great. Using what is termed “behavioural targeting” – (sometimes “behavioural analytics” or “online tracking”, but let’s call it BT for the sake of simplicity) – they will be able to plot the course of any internet journey an individual ever makes. True, they won’t be allowed to know that individual’s real name, date of birth or physical address. But they will, by inference, be able to draw over time an incredibly intimate portrait of his or her most heartfelt material desires.

BT is, or rather will be, infinitely more valuable to advertisers than their best current tool, contextual advertising – which relies upon careful targeting of web-page content rather than anything known about the disposition of its visitor. Andrew Walmsley, a noted industry expert on the subject, is in no doubt that BT will supplant demographics-based contextual advertising:

We’re still going to see demographics used online, but principally so it can be benchmarked against other media. But, just as we sometimes hear the Fahrenheit temperature given on the weather forecast, it’s really just for the old folks.

His article is, by the way, a useful reminder that not all BT is the same: there are at least six varieties, of varying potency.

So, win-win: bring it on. Except, of course, that BT is deeply invasive of individual privacy. Technically, it relies upon access to an electronic spy – a special kind of cookie – planted in the heart of every individual’s hard-disk drive. Without consent, its exploitation could be considered not only an infringement of the Data Protection Act, but the wider European Human Rights Act. Many civil rights advocates would go further and invoke the shade of George Orwell. Unregulated, information acquired through online tracking could pass into the hands of shady, unlicensed third-party operators – for example, totalitarian-minded apparatchiks or deeply unscrupulous businessmen – with who knows what consequences for our civil liberties.

I come back to Madelin. Who is he? None other than the director general of Information Society and Media, European Commission (EC/INFSO for short). In other words, the senior civil servant in charge of the Brussels bureau concerned, among other things, with reconciling the needs – commerce among them – of the information society and EU civil liberties.

One of Madelin’s unenviable tasks is to act as ringmaster in the interpretation of a new ePrivacy Directive, promulgated in May this year but only fully effective from next spring.

A key bone of contention between the two warring factions he must conciliate – let’s call them “industry” and “civil society”, because that’s what they call themselves – is whether the new legislation actually requires “prior informed consent” being given to any organisations wishing to place or access files stored on a personal computer. And if so, just what definition is placed on the term ‘file’.

An extreme interpretation of these new rules would mean unmitigated triumph for the privacy lobby. Every time a cookie (not all of which are concerned with online tracking, of course) came up, it would have to be accompanied by a pop-up demanding instant consent or denial. Tedious in the extreme for the online user, and disastrous for industry.

The more nuanced civil society position seems to be an “Opt In” choice for the individual user, backed by  statutory legislation, but applicable only to those cookies capable of commercial online tracking.

Not surprisingly industry, whose position has been articulated by the Internet Advertising Bureau and something called EASA (European Advertising Standards Alliance), is having none of this.

It believes the civil society stance is flawed and naive. Specifically, the privacy lobbyists fail to understand that the free advantages we enjoy on the internet these days  – such as email, news, social networking, maps, entertainment – have only come about because they have been subsidised by advertising revenue. In this sense, BT is merely “the next stage” in a process which has been going on for two decades.

Worse, what lurks behind the civil society position is not so much a concern for advancing individual privacy as a profoundly hostile attitude to commerce – which is regarded as sinister and manipulative.

Industry is not arguing there should be no restrictions on BT, merely that they should be – you guessed – minimal and self-regulated; in fact, drawn up on the British ‘voluntary’ model of advertising regulation. It disputes that the “informed consent” required by the new legislation need be “prior”. Hence its adoption of what we might call an “Opt Out” strategy.

Put simply, the industry proposal amounts to a website where consumers can block online tracking by going through a long list of advertisers (those at least signing up to the IAB initiative) and clicking on check boxes. This mechanism will be identified by an icon appearing on sites where commercial tracking technology (particularly third-party cookies) is being used. And promoted along the lines of ‘better technology leads to a better life; but you, the consumer, remain in control’.

There is some doubt – even within the industry camp – that the IAB-devised plan will be enough to turn the trick on its own. Nevertheless, industry is becoming increasingly confident that is has won the day, barring a few concessions.

This confidence was backlit a few months ago by some extraordinary shenanigans in Brussels, when one member of the civil society faction stomped out of a Madelin-chaired committee meeting and subsequently accused Madelin of being “captured by industry“.

What this seems to mean is that Madelin has indeed come down in favour of Opt Out. But there will be a price to pay. It will include an open, independent, audit to which advertisers will have to submit themselves; total transparency (whatever that means, exactly) in their dealings; and an effective consumer tribunal for handling any complaints.

A key voice in all of this will be that of Chris Graham, the UK Information Commissioner and – as former chief executive of the Advertising Standards Authority – something of an expert on how the self-regulatory system works. (Purely coincidentally, the ASA is likely to be the UK  regulator if Opt Out prevails.)

Graham has yet to pronounce ex cathedra on the subject. But the broadly benign texture of his views can be gauged by a visit to the ICO website, where the talk is of the industry facing up to ‘transparency’ and ‘independent audits’.

My understanding is that the advertising industry is being given a few more months’ grace to define its regulatory position satisfactorily. Failing which, Madelin will move down the path to statutory legislation. As can be imagined, every sinew will be stretched to ensure he does not feel the need to do so.

Before leaving this convoluted subject, it might be of passing interest to hear what the punter, rather than self-appointed experts speaking on his behalf, thinks about BT.

Handily, McCann Erickson has just published a relevant piece of research under the McCann Truth Central banner. The study, which quizzed 6,500 people in the US, UK, Hong Kong, Japan, India and Chile, shows that people are indeed concerned about attacks on their personal privacy. But targeted marketing is way down the list of threats, the two principal issues being the security of financial data and the security of personal reputation.

McCann WorldGroup global IQ director Laura Simpson notes that:

65% of people around the world are aware of Web tracking and 44% are aware that marketers use it to determine the interests of consumers. “Many welcome it,” she adds, because they believe there is a fair exchange, including access to promotions and discounts and ads directed at them that are more relevant to their needs.

Then again, as one industry commentator on the article points out, that enthusiasm may be conditioned by poor understanding of how sophisticated BT actually is.

“Bonking” Boris – the world’s worst brand ambassador for discreet nookie

October 10, 2011

You’ve got to admire the chutzpah – if nothing else – of those smart cookies at Ashley Madison. Using Bojo as a pirated pin-up boy for their national advertising campaign targeting the professionally promiscuous looks like a stroke of marcoms genius.

“Affairs Now Guaranteed! No Matter what you look like,” screams the copy. And there opposite it is the seemingly perfect complement, an image of the Tousled Philanderer, whose extramarital indiscretions are a matter of public record.

So, top marks for clear brand identification. Top marks also for effective use of media on a small budget. Like any successful political poster campaign, this one relies on stretching very little money a very long way through maximum media leverage. A so-far-single poster (erected in Camden, London) has neatly achieved national coverage in a matter of hours.

What’s more, Boris has managed to add reinforcing feedback, if entirely involuntarily. As can be readily appreciated, the affronted London Mayor regards this exploitation of his private life with all the relish attending a visit to the dentist for root-canal surgery. But threatening legal action is only going to make matters worse, by directing more attention to the campaign.

Ashley Madison is smugly aware of this; it has done its homework. No one is going to complain to the relevant regulator, the Advertising Standards Authority, for the good reason that AM has not, apparently, transgressed any of its rules. And, as for legal action, AM has an answer for that as well: “If the Mayor exerts the influence of his office to take it [the poster] down, we will proceed with our own legal action for tortuous interference of a business venture,” opines its managing director Noel Biderman on Campaign’s website.

I have just one quibble with this campaign, and it’s not what you might think. On its website the infidelity broker makes great play of one of its key brand attributes: it is, apparently, ‘The world’s leading married dating service for discreet encounters’.

Bojo discreet? Don’t make me laugh. Let’s just remind ourselves of that highly confidential record. Alexander “Bonking” Boris de Pfeffel Johnson was sacked from the shadow cabinet’s front bench in 2004 for lying to then leader Michael Howard about the four-year affair he had been conducting with champagne hack Petronella Wyatt. There is reasonable circumstantial evidence (according to the Daily Mail, at any rate) that he has recently fathered the son of wealthy socialite Helen Macintyre. More recently still, he has muddied already turbulent political waters by appointing his (now-ex) mistress as a fundraiser for the Olympic Park sculpture, shortly after her official partner had contributed £80,000 to the self-same project.

It may well be that the Mayor of London can walk on water. But I would advise clients of Ashley Madison not to think they can do the same.

Advertisers mull the hidden costs of child-proofing the web

September 1, 2010

The extension of the Advertising Standards Authority remit to corporate websites and social media content has not come a moment too soon.

The self-regulatory principle – and therein, the ability of advertisers to deflect calls for an unwieldy statutory alternative – is only as robust as its weakest link. And this was a very weak link – so flimsy that unscrupulous malefactors within the industry could, and did, drive a coach and horses through the CAP code. Since 2008, the ASA – which enforces CAP – has received more than 4,500 complaints about online content abuse. To which the lame – but unavoidable – rebuttal has been: that’s not our affair.

No doubt as billed, the new CAP code revisions comprises some of the most ambitiously scoped regulation in the world. The devil, of course, will be in policing the detail. There are at least two areas of concern here.

Punitive sanctions are notoriously more difficult to enforce online than they are with strictly regulated traditional media. The ASA has shrewdly enlisted Google’s help (Google is also supplying seed-corn capital to prime the pump of wider regulatory coverage). Among its options are to remove paid-for search ads linked to persistent offenders and, if necessary, to escalate the pressure by inserting the ASA’s own “name and shame” search ads opposite the offending site. This, of course, does not have the same force as an outright ban.

More subtle is the issue of scrutinising what constitutes code-breaking content and what does not. Nowhere, it seems, in the newly revised code is there a precise definition of “marketing communications”. Possibly for good legal reason. The boundary between self-promotion and “free editorial comment” is often a difficult one to draw. Nevertheless, the penalty in not defining it precisely will be a slow and – for the sometimes unwitting perpetrators – painful and expensive learning curve while case histories are built up. I doubt that the six-month induction period before the new restrictions are fully implemented will be long enough for the industry to get up to speed.

Let’s look at a rather alarming example of the depth of industry ignorance. ASA chairman Chris Smith, taking his cue from David Cameron’s warning about the sanctity of family values, portrays the revised code as having “the protection of children and consumers at its heart.” Coca-Cola recently, and notoriously, fired it digital agency, Lean Mean Fighting Machine, over a Facebook promotion for Dr Pepper that badly miscarried. No doubt the agency thought it was being smart and edgy when it inserted a cryptic reference to hardcore pornographic movie Two Girls One Cup into the copy. But the reference was wholly inappropriate for the 14-year old girl who ended up reading it – and whose mother subsequently blew the whistle on Coke’s irresponsible behaviour. Coke fired the agency and apologised fulsomely. But the chilling thing was Coke clearly had no idea what the reference meant, and no idea what its agency was up to. If an advertiser of this sophistication can make such an elementary blunder, what hope is there for everyone else?

The upshot of these revised regulations will be to promote a host of new hirings. At the ASA, to sift through the prodigious number of case studies generated; and at advertisers and their agencies, to monitor the new boundaries of acceptability.

Sorry Costa – are you better than Caffe Nero too?

June 16, 2010

Practical experience has long told us that Costa coffee tastes better than the Starbucks brew. So Costa, owned by Whitbread, must have felt on a pretty safe wicket when it came up with a knocking campaign to prove the point. Do its research properly, and it would romp home.

So it turned out. Costa launched a poster and print campaign, via Kamarama, which rejoiced in such wounding straplines as: “Sorry Starbucks: the people have voted”; “Starbucks drinkers prefer Costa” and “Seven out of ten coffee lovers prefer Costa”. And it was a winner. Costa’s sales, on a like-for-like basis, rose 5.5% during the period (though how much of this was share stolen from the unfortunate Starbucks I do not know).

Most wounding of all, no one complained about the unfairness of it all. Well, almost no one. A single complaint was lodged with the appropriate watchdog, the Advertising Standards Authority. Guess who lodged it? A comprehensive inquiry investigating everything from Costa’s methodology to the size of its small print followed. And the result? Triumphant vindication for Costa and superheated milk-froth in the face for Starbucks, all five of whose grounds for complaint were rejected. Game, set and match to Costa.

In such circumstances, it might seem churlish to rain on Costa’s parade, but I do have a niggle. Well, more an enquiry really. The ASA seems more than happy with the professionalism of the market research on which these sensational Costa claims were based, so who am I to complain? Just for the record, though, the blind-taste tests in question also involved a Caffe Nero cappuccino, which alternated with Starbucks’ equivalent brew as the foil to the Costa product. Yet we hear nothing of what our sample thought of Caffe Nero vis-à-vis Costa. Common sense suggests it performed rather better than the Starbucks product, which has unkindly been compared to a warm adult milkshake. But the ASA adjudication document does not make this entirely clear. Supposedly, the full research results are published on See if you can find them. I can’t.

On a footnote, taste isn’t everything. If it were, Pepsi would long since have overtaken Coca-Cola in the UK, according – so I am told – to periodic blind-taste tests.

UPDATE: You will search in vain for the research findings on the Costa website: they have been removed. However, a kindly PR has provided me with a copy of the results and I can report the following:

“Preference for Costa’s cappuccino is remarkably strong in comparison to competitors among those who identified themselves as “Coffee lovers”, With 7 out of 10 preferring Costa (with 72% preferring Costa versus 28% Starbucks; and 69% preferring Costa versus 31% Nero). Significantly, coffee drinkers who prefer Caffè Nero and Starbucks as their main outlets preferred Costa cappuccino over their preferred retailer’s product.”

MPs bank on the FSA regulatory model to beat binge-drinking

January 8, 2010

I seem to remember Oliver Cromwell once tried to ban mince pies. Reading the recommendations of the long-awaited House of Commons health select committee report on alcohol abuse, I get the impression that a number of our MPs have been infected with the same joyless dedication to futile causes as Cromwell’s not-so-merry men in the Long Parliament.

Do they really think that putting a minimum price of 50p on a unit of alcohol will help to staunch binge-drinking? Ireland levies still higher taxes than us on alcohol, yet is the biggest binge-drinking nation in the EU (Luxembourg maybe excepted).

Do they really think that introducing a 9pm watershed ban for TV advertising will do the trick for under-18 year olds (as if most are tucked up in bed by then, have never used a PVR, or heard of internet protocol TV)?

Do they really think they have any effective power over what messages go onto off-shore social media websites?

Do they really think the ultimate solution is to take regulation out of the hands of the Advertising Standards Authority and the industry-funded Portman Group and place it with a “Financial Services Authority (FSA) style body”? As if there were no very deep irony in that suggestion?

Sadly they do. It is the “FSA” proposal in particular that sums up the committee’s retrograde, quixotic thinking. Retrograde, because it suggests that statutory regulation is the way forward, when all the momentum in advertising regulation over the past few years has been achieved through toughening up self-regulation and creating a partnership between industry and government. Change4Life and Business4Life provide an illuminating example of how this concordat has worked in another contentious sector. Yet it is no isolated instance. The drinks industry itself is engaged in an identifiably similar  partnership with the 5-year Drink Aware programme. These new proposals simply throw a spanner in the works of self-regulation, with unsettling implications for the broader marketing community.

The committee’s argument for departing from the new orthodoxy seems to be that alcohol is a special case demanding rigorous vigilance of the sort uniquely provided by the statutory regulator overseeing financial services. Which planet have all these MPs been living on recently? The FSA is a discredited body. It showed itself to be corrupt and ineffectual as one of the “tripartite” regulators of the UK financial system during the late credit crunch. Although it has since been radically overhauled under new chairman Adair Turner, reform may earn it no more than a stay of execution. The Conservatives, who seem increasingly likely to form the next government, have made it clear they intend to abolish the FSA and roll a number of its functions into the Bank of England.

No matter. The probable trajectory of most, if not all, of these proposals is into the waste-paper bin of history, for the reason mentioned above: an imminent change of government. Cursory examination of Tory policy on this matter (the Public Health Commission) suggests that Cameron and co will attempt to streamline regulation in the food, soft drinks and alcohol sectors into a single policy framework guided by a so-called Responsibility Deal with the relevant industry sectors. In other words, they are wedded to the concept of self-regulation, albeit of a more vigilant, effective variety. Ah yes, you may object: aren’t you missing the point? The House of Commons health committee is an independently constituted body of MPs which owes no allegiance to the Government of the day. Its proposals are likely, therefore, to hold as much authority under a Conservative government as a Labour one. Well, yes and no. The MPs themselves may be relatively independent backbenchers, but the complexion of the committee, and who chairs it, is indirectly influenced by who is in power. Which will have an ideological bias on any future recommendations it arrives at.

I’m not, of course, suggesting that alcoholism and binge drinking aren’t serious social problems deserving government intervention. On the contrary, some of the committee’s suggestions are clearly constructive. Certainly more of the industry’s estimated £800m a year spent on advertising and sponsorship could be usefully channelled into the promotion of public health. Other ideas, however, are pure lunacy. The recommendation, for example, that no event should be sponsored by a drinks advertiser if more than 10% of its attendees are under 18 would have a disastrous impact upon music festivals and, more importantly, sport  – if ever implemented.

Shane Warne, Cheryl Cole, Gordon Brown and a spate of bad-hair advertising

November 25, 2009

It must be national bad hair week and I hadn’t noticed. Nothing else would seem to explain the explosion of hair-related controversies in the media.

Most recent is the shocking case of Australian cricket legend Shane Warne’s hair loss. He and his follicularly-challenged partner in crime Graham Gooch have just been banned. But not, you’ll be glad to hear, from playing cricket. No, it’s much more trivial than that. The Advertising Standards Authority has cracked down on an ad created for trichologist Advanced Hair Studio – promoting its laser therapy and “strand by strand” technology – to whom our two sporting heroes have been lending not only their prestige but their balding pates.

I’m a little at sea over why the ASA has taken two years to reach such a Draconian verdict. After all, the ad doesn’t actually say that AHS cures hair loss.

Which moves me neatly on to hair crisis number two: the case of Cheryl Cole’s false locks. How come that Elvive can get away with plying a palpably false impression of bountiful, bouncing, natural hair, while AHS isn’t even given the benefit of a few reimplanted strands? The answer, as so often, lies in the small print. The ASA found in favour of Elvive because it provided subliminally small disclaimers about Cheryl’s hair not being entirely her own (quite a lot is nylon, I gather). This is not, I’m afraid, a finding which sits happily within the ASA remit of  upholding “legal, decent, honest and truthful” advertising. Such dishonesty is more widespread in cosmetics advertising than we would like to believe.

The third bad hair advertising controversy is not so much a case of fairness as of silliness. I refer to the opening rounds of our forthcoming general election campaign and the two stunningly original poster ads it has so far produced: one for the Conservative Party (Euro RSCG) and one for Labour (Saatchi & Saatchi), both pillorying each other as the Jedwards, whose twin misfortunes are to have been evicted from the X-Factor, and to be burdened with a hairstyle that must make Shane Warne think twice about the wisdom of hair implants. The ASA won’t be allowed to touch these ads, more’s the pity.

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