• by Jim Ewel , January 21, 2010

The IAB and 4A recently published draft version 3.0 of their standard terms and conditions (T&Cs) for comment. This is the first revision since 2002, and it addresses a number of issues, including revised editorial adjacency guidelines, data usage and ownership, cancellation terms, indemnification and third-party ad serving.

Although all of the changes are important, the changes that will have the most far-reaching impact are the changes to data usage/ownership and the changes to the editorial adjacency guidelines. These changes are long overdue, and the committee did a good job of balancing the needs of the advertisers and agencies versus the media companies. By their own admission, they weren't quite able to reach consensus on data ownership, but by establishing acceptable and unacceptable uses, they moved the ball forward in important ways.

The changes to acceptable usage and ownership of data are embodied in the confidentiality section, a section that was almost completely rewritten. This committee defined four categories of confidential information and proposed usage restrictions for each category:

1. User volunteered data - personally identifiable information collected from a user during delivery of an ad. This could include items like name, email address, or street address. If this information is gathered on behalf of the advertiser, it is considered confidential information of the advertiser, and may only be used by the advertiser. The media company may not use it for any other purpose or any other advertiser. This is a clear "win" for the advertiser, and one area where data ownership is clearly delineated. Note that the data must be gathered on the behalf of the advertiser, and this must be made explicit to the user. If this is not done, user volunteered data can be used by the media company for any legal purpose.

2. IO details - details set forth in the IO are considered confidential data. Advertisers cannot release information about the pricing they get from media companies, and media companies cannot release placement details like where the ad ran and who was targeted. 3. Performance data - The results of a campaign (how many

impressions, clicks, interactions, etc) stripped of any specific site data or IO details. This data can be aggregated, reported on, and used for just about any purpose, including retargeting. The key here is whether the data can be related to a specific media company's site, brand, content, context or users. If it can, then the data is confidential data of the media company, and cannot be used by the advertiser.

4. Site data - this includes pre-existing media company data (such as behavioral targeting data), performance data that is site specific, or user-entered data that is gathered by the media company, but not specifically on behalf of the advertiser. In general, all of this data belongs to the media company and cannot be used by the advertiser for retargeting. However, there are also restrictions on the media company's use of the data. Media companies cannot create profiles or behavioral targeting packages based on a single advertiser's brand. Media companies are allowed to aggregate data across multiple brand advertisers to create targeting packages or other products. For example, media companies can't take a list of those users who respond to one computer manufacturer's advertising campaign, and sell those to another computer manufacturer. But they can use the result of multiple campaigns from several computer manufacturers and create a targeted product.

It is in this area, the tension between what is performance data and what is site data, that the media companies have the most to gain or lose. It's unclear whether this formulation (identifiable to a specific media company's site, brand, content, context or users), will provide the bright line separating usable performance data from proprietary site data. While it is probably a reasonable compromise, there are clearly some gray areas, particularly in regards to a company's context and users. Does ESPN "own" the context of sports? Because I visit a particular site, does that site "own" me as a user?

The editorial adjacency guidelines have also changed significantly. For the first time, they list unacceptable categories (content that promotes pornography, violence, or the use of firearms, or contains obscene language) and suggest that additional categories can be specified on the IO as needed. Advertisers should consider adding other categories like nudity, malware, phishing/fraud and criminal & hacking to their IOs and consider the use of an ad verification service to verify compliance. The penalties are limited to make goods or refunds, although individual agencies may want to negotiate stiffer penalties.

This section also addresses (sort of) the issue of user-generated content (UGC) sites. I say "sort of" addresses the issue because it excludes UGC sites from editorial adjacency guidelines, and instead substitutes the site's Terms of Use, which are interpreted solely by the Media Company. In other words, if you are at all concerned about having your ads next to unacceptable content, avoid UGC sites.

This section does have a number of loopholes that advertisers should be aware of. The final paragraph says "no Advertiser will be entitled to any remedy for any violation of the Editorial Adjacency Guidelines resulting from: (i) Ads placed at locations other than the Site, or (ii) Ads displayed on properties that Agency or Advertiser is aware, or should be aware, may contain content in potential violation of the Editorial Adjacency Guidelines."

The first section is intended to absolve the media company from unscrupulous partners who join a media company with one site, but deliver advertising tags on additional sites, which haven't been reviewed by the media company, and may have content that violates editorial adjacency guidelines. This essentially says that the media companies don't want to stand behind their product if their suppliers provide a poor product. Many advertisers will and should find this unacceptable. Imagine if your local department store wouldn't let you exchange a product if the product was made by one of their suppliers, rather than made by the department store.

The second paragraph provides another out for the network - if the media company provides the advertiser with a site list, and either because of the name of the site or because of common knowledge, the advertiser should have known that the content violated guidelines, the network is absolved of any responsibility and not required to provide make goods or refunds. In my opinion, both of these loopholes should be closed. Media companies should stand behind their product, and they should take it on themselves to exclude sites in their list that violate the editorial adjacency guidelines, not put the onus on the advertiser.

Overall, Version 3.0 is an important update to the standard terms and conditions, and one that tries to strike a balance between the interests of the parties. It isn't perfect, and it may require some revisions before the final version is published, but it attempts to address some important issues that should make interactive advertising more transparent and accountable. That's good for all of us.