Essay discusses about Privacy, Ethics and the Law In Relation To Behavioural Tracking and Targeting

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Privacy, Ethics and the Law In Relation To Behavioural Tracking and Targeting

The advent of the online world has provided a new and profitable marketplace in which billions of people now spend billions of dollars every single day. With this new marketplace have come opportunities for marketers and advertisers to push their products in new and sophisticated ways such as the practice of behavioural tracking and targeting. However, this practice is considered by many to be unwanted and obtrusive to privacy, causing ethical and legal issues.

Advertising plays an important role in the functioning of the Internet and without it much of the webs’ content would be unavailable to users. Online advertising traditionally involves intermediaries who provide a free online service or content to viewers; the advertisers then pay these intermediaries for the viewers through ads that appear on the web page (Andreas, 2013). This basic model for online advertising has its limitations and thanks to technological and economic development, it has been expanded into more sophisticated and functional forms (Andreas, 2013). Online behavioural advertising is one such example of the new generation of marketing and advertising models. Behavioural advertising involves the collection of online behavioural data; this data is then used to build a profile of a particular user, in order to target that user with ads that relate to their interests (Andreas, 2013). The process of behavioural advertising can be split into two stages called tracking and targeting (Bernal, 2014). Tracking involves monitoring a web users activity through approaches such as the cookie-based approach, the spyware-based approach and the deep packet inspection-based approach (Berger, 2011). These sophisticated practices allow advertisers to track consumer behaviour across multiple sites and collect huge amounts of data on them (Berger, 2011). Once this tracking data has been analysed, advertisers can then use it to target individual consumers, sending them tailored information in the form of advertising or other associated content (Bernal, 2014). The behavioural targeting method has proven itself highly effective and consequently the marketing industry is extremely enthusiastic about it (Bernal, 2014). Marketers argue that targeted ads are more effective and relevant, working well for advertisers while also giving customers what they want (Bernal, 2014). However, privacy advocates view behavioural advertising in a different light, citing it as a harmful and potentially dangerous activity (Bernal, 2014).

The reason privacy is such an important issue is because the ideas of privacy and autonomy matter to people (Bernal, 2014). Privacy is considered a basic human need and can be generally understood as a persons right to be let alone (Trepte & Reinecke, 2011). Trepte and Reinecke (2001) state that privacy as a concept involves an individuals control over their circles of intimacy in the physical, psychological, social and informational dimensions. Due to advances in the realm of information technology such as the development of behavioural advertising, privacy protection now plays an important role in all dimensions of privacy, particularly the informational dimension (Trepte & Reinecke, 2011). Bernal (2014) poses the fundamental question with regards to privacy and behavioural targeting; to what degree is our privacy vested in the information held about us? Other questions such as what kind of information should be considered private, and is there a difference between personal information and private information should also be considered (Bernal, 2014). One of the major functions of behavioural targeting is the practice of profiling, in which a mathematical, analytical system uses extensive databases to construct a description or profile of a person based on their online activity (Bernal, 2014). Profiling can be extremely accurate and as the technology behind it continues to develop and improve it is possible to make large and far-reaching future inferences based on seemingly unremarkable data (Bernal, 2014). While some may not place much value on data such as your everyday supermarket shopping habits, it is possible to use this data to come to conclusions regarding more private matters, such as your medical condition (Bernal, 2014). Although behavioural tracking systems are currently used for advertising these same systems can also be used to facilitate financial fraud or identity theft (Berger, 2011). The fact is we live in a world of information and that information is accessible. Whether it is the cookies and spyware that track our browsing habits, the built in car computers that send performance data about our vehicle back to the manufacturer or the RFID technology that can be used to relay payment information about a credit card transactions, our information is accessible (Mills, 2008). The bottom line is that online marketing such as behavioural tracking affect consumers control of their personal data and that in turn affects consumers privacy rights or their right to be let alone (Dixon, 2005).

The implementing of Internet laws regarding online privacy protection has become a slow and cumbersome process thanks to the rapid evolution of technology, slow lawmakers and the borderless nature of the Internet (Bernal, 2014). Differences in National and International laws also work to restrict and cause inconsistency in privacy protection law (Trepte & Reinecke, 2011). According to Mills (2005), the four broad legal concepts that cover the issue of privacy protection are autonomy in personal decisions making, control of personal information, control of property rights, and control of physical space. These four concepts do cover informational privacy, but the remedies developed for each concept were often developed years ago and they struggle to be effective against modern privacy intrusions (Mills, 2005). Despite the difficulties involved in Internet lawmaking a growing number of law and enforcement actions now recognise the impact that online marketing such as behavioural advertising can have on the privacy rights of consumers (Dixon, 2005). These laws and restrictions focus on making online marketers liable and for their online activities and it is in the best interests of these marketers to comply with the law so they can maintain positive relationships with their customers, this being a core concept of the marketing practice (Dixon, 2005). Many countries explicitly recognise privacy rights in their constitutions and have implemented legal regulation of online data through comprehensive data protection laws (Trepte & Reinecke, 2011). As well as National law, International recognition of privacy as a basic human right is evident in the UN declaration of Human Rights, the European Convention on Human Rights, among others (Trepte & Reinecke, 2011). In Australia, the ACCC (2010) Trade Practices Act outlines corporations obligations to consumers, which includes the statement that, “a corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.” However, misleading or deceptive conduct is are broad terms and are not specific enough to be truly effective in today’s online environment. A study conducted by Shelly (2008) studied 40 websites and reviewed the extent to which they adhered to the their obligations to consumers as outlined in the Trade Practices Act. The study found that 22 out of the 40 websites studied failed to meet these obligations as well as other obligations imposed upon them under other legal terms and conditions such as not providing secure payment facilities (Shelly, 2008). Ultimately it is the responsibility of the consumer to read business privacy policy or online terms and conditions and then to decide whether or not they want to deal with that business (Shelly, 2008). These privacy disclosures and policies may not be an effective way to communicate with consumers as they have become convoluted and difficult to understand (Berger, 2011). However, a recent push for increased transparency and consumer control in online marketing has generated new ways for consumers to protect their online privacy (Berger, 2011).

The issue of consent has become an important aspect of the argument surrounding online marketing and behavioural advertising in particular. Information collection practices are extremely prevalent in the US, however, in the past many of the commercial websites that practice it provide no notice of their actions and even less provide a comprehensive privacy policy (Screeton, 1998). In more recent years the legal requirements of websites have changed and those who practice behavioural tracking are now required to state that they are doing so and give consumers the option to opt out (Berger, 2011). Although these requirements appear infallible, loopholes undermine their effectiveness. Behavioural advertisers often only deal with consent on a superficial level, viewing it as something consumers do implicitly, by participating in their services (Bernal, 2014). For example, in 2007 Facebook launched a new set of advertising tools in association with other participating websites that would automatically share users activity involving the participating sites to the users friends feeds, increasing their online reach (Andreas, 2013). While Facebook did offer users a chance to opt out of this service, they had to pursue the matter themselves and were opted in by default (Andreas, 2013). This approach lacks any kind of discourse with the consumers themselves and could be considered deceitful. However, in the end it is the advertising money that pays for the supposedly free content that Internet users enjoy and the website operators are within their rights to refuse that content to users who opt out, as they are not helping to pay for their running costs (Berger, 2011). The only way that there can be a positive relationship between the behavioural advertisers and the consumers is if both sides benefit from it and both sides understand that benefit while giving their consent in the process (Bernal, 2014).

The issues ethical and legal issues inherent in behavioural advertising are complex and cannot be easily addressed. In today’s technological world, people’s sense of privacy is diminishing and so they want to hold on to what little they have left, while still demanding the improved consumer experiences that come at the cost of that very privacy. In order for the current marketing and advertising paradigms to continue they must fully address the issues of privacy and consent and consumers must in turn recognise that if they want a better consumer experience they must be willing to compromise some of their privacy.

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