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Advertisers ignoring Microsoft's 'do not track' settings will not break industry rules, says ad body

Advertisers that elect to ignore default privacy settings that Microsoft seems set to impose in its new website browser will not face penalties or sanctions for doing so, an advertising industry body has said.

Microsoft has announced its intention to introduce 'do not track' (DNT) privacy settings as a default position for users of its imminent new Internet Explorer browser (IE10). The move would mean that users would actively have to alter their settings in order to allow websites and advertising networks to track their online activity in order to serve adverts based on their browsing history.

The move has angered those in the advertising industry with the US Association of National Advertisers (ANA) recently claiming that Microsoft's "shocking" plans put content providers at risks because of lost advertising revenue.

Now the Digital Advertising Alliance (DAA) has said that members of the organisations that comprise it will not be considered to be violating self-regulatory rules that govern their online behavioural advertising practices if they simply ignore the DNT settings in IE10. The DAA is made up of a number of ad industry groups, including the Internet Advertising Bureau (IAB) and Direct Marketing Association (DMA).

"The DAA does not require companies to honor DNT signals fixed by the browser manufacturers and set by them in browsers," the body said in a statement. "Specifically, it is not a DAA Principle or in any way a requirement under the DAA Program to honor a DNT signal that is automatically set in IE10 or any other browser. The Council of Better Business Bureaus and the Direct Marketing Association will not sanction or penalise companies or otherwise enforce with respect to DNT signals set on IE10 or other browsers."

"The trade associations that lead the DAA do not believe that Microsoft’s IE10 browser settings are an appropriate standard for providing consumer choice. Machine-driven do not track does not represent user choice; it represents browser-manufacturer choice. Allowing browser manufacturers to determine the kinds of information users receive could negatively impact the vast consumer benefits and Internet experiences delivered by DAA participants and millions of other Web sites that consumers value," it said.

"In addition, standards that are different than the consensus-based DAA Principles could confuse consumers and be difficult to implement. A 'default on' do-not-track mechanism offers consumers and businesses inconsistencies and confusion instead of comfort and security," the DAA added.

In 2010 the DAA's member groups established a new self-regulatory framework of principles governing online behavioural advertising (OBA) for their voluntarily signed-up members. The principles require member companies to conform to particular rules that relate to, for example, educating consumers about OBA, providing transparent information about their data collection practices as well as stipulating what data advertisers can use to send personalised ads and requiring that users are given controls in order that they may restrict the information collected about them.

Under the framework the DMA and Council of Better Business Bureaus (CBBB) are responsible for ensuring compliance and enforcement of the framework. It is a condition of membership of the DMA that companies comply with the scheme's rules. The CBBB and DMA use a "monitoring technology platform to foster accountability among participating companies with respect to the Transparency and Control requirements of the Principles" whilst they also "manage consumer complaint resolution," according to the self-regulatory framework.

In its statement the DAA also said that CBBB and DMA "can refer violators to government authorities for sanction if they refuse to modify non-compliant behaviors".

However, Microsoft has signalled its intention to press ahead with implementing DNT by default when it launches IE10.

"Consumers want and expect strong privacy protection to be built into Microsoft products and services," Brendon Lynch, chief privacy officer at Microsoft, said in a statement, according to a report by ZDNet.

"A recent Microsoft survey of US and European consumers shows 75% of PC users want Microsoft to turn 'on' do not track. This reaffirms our decision to enable DNT in the 'Express Settings' portion of the Windows 8 set-up experience. There, consumers can easily switch DNT off if they’d like. Transparency and choice guide our approach. We will continue to innovate and compete on privacy," he added.

The World Wide Web Consortium (W3C), which is responsible for ensuring that web technology is based on an agreed set of technical standards, has been working on developing a new 'do not track' controls system for operation within web browser settings. Earlier this year W3C said that DNT should not be switched on by default but should require an explicit instruction to begin working.

The DMA, which is represented at W3C, has called for third-party advertisers to be allowed to send "marketing" information to website users even if they do have DNT settings enabled under the new standard. The organisation's representative on the W3C's 'Tracking Protection Working Group', Rachel Thomas, said marketing did not "harm" consumers.

"DNT should permit [marketing] as one of the most important values of civil society," Thomas wrote. "Its byproduct also furthers democracy, free speech, and – most importantly in these times – jobs. It is as critical to society – and the economy – as fraud prevention and IP protection and should be treated the same way." 

"Marketing as a permitted use would allow the use of the data to send relevant offers to consumers through specific devices they have used. The data could not be used for other purposes, such as eligibility for employment, insurance, etc. Thus, we move to a harm consideration. Ads and offers are just offers – users/consumers can simply not respond to those offers – there is no associated harm," she added.

However, a representative on the same working group for Adobe Systems, Roy Fielding, said that Thomas' proposals would "not be adopted" and described them as "not an effective way to contribute to this process".

"The purpose of DNT is to express a user preference to not be tracked," Fielding said. "Losing targeted marketing (but not contextual marketing) is a trade-off that is best chosen by the user, presuming DNT reflects their actual choice."

"[Marketing] is not a permitted use because it is the collection of data for the sake of targeted marketing that the user is specifically trying to turn off. The harm is clearly demonstrated by anyone looking over the shoulder (or monitoring the traffic) of a user in a context different from when that targeting data was collected," he added.

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