Such campaign retargeting runs contrary to the current IAB/AAAA Terms & Conditions. Exposure data falls under the definition of “Site Data,” which cannot be re-used by the advertiser without permission. So unless an advertiser or their agency specifically addresses this with an addendum, such uses are verboten.
Agree with it or not, the reasons why Site Data can’t be repurposed are fairly obvious. Publishers pay a lot of money to attract an audience, and the more desirable that audience is, the larger the premium advertisers will pay to reach them. Repurposing Site Data would allow advertisers to reach a publisher’s audience once, then perpetually retarget them across the exchanges. That’s why the Ts & Cs forbid this.
Which gives rise to two interesting questions; How would a publisher even know exposure data was being used to retarget? And in the unlikely event that a publisher catches an agency doing this, what happens then?
I can’t imagine a scenario where a publisher finds out that an agency or advertiser is utilizing campaign retargeting, unless a whistleblower at the agency were to volunteer that kind of information. That said, even if an agency or advertiser were caught red-handed, what might happen next is somewhat vague.
I’m not a lawyer, and nothing in this column should ever be construed as legal advice. But here’s how the Ts & Cs deal with a breach. There’s a limitation of liability clause, but data breaches and “intentional misconduct by Agency” are both things that are excluded from it. Which, of course, makes the penalty for getting caught misusing data… up to the courts.
Please allow me to take a break in order to relate an experience from earlier in my career.
During the first dot com boom, I was working for a publicly-traded digital agency, often having to trade NDAs with various other startups. I sent an agreement to our COO, who had formerly been our outside counsel, for approval. It came back to me with a lot of unintelligible red ink, so I went to his office for some clarification, and got some words of wisdom:
“Proving damages over a bunch of ones and zeroes is notoriously difficult,” he said.
Again, I’m not a lawyer, nor would I say this lawyer’s advice necessarily pertains to this situation. But in thinking about the campaign retargeting issue, this encounter came to mind. And here’s what it made me think to myself: If I were a publisher, would I want to sit in court trying to prove that campaign retargeting damaged my business to the tune of a specific dollar amount?
So, in the end, we have a strict prohibition of this type of thing in our industry standard Terms and Conditions, but we have no concrete way to catch the people who might violate that prohibition. Nor do we have an established penalty serving as a deterrent against such behavior.
The next time the IAB and the AAAA meet to discuss the Ts & Cs, perhaps they ought to take this issue up.