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Massachusetts AG Reaches Geofencing Settlement with Digital Advertising Company

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According to a recent press release by the Massachusetts Attorney General, the agency has reached settlement terms with a digital advertising company that prohibits it from using mobile geofencing technology to target women entering local reproductive health facilities.

Geofencing technology permits digital advertisers to direct advertisements to users through browsers and applications on their devices when those users are located in specifically designated territory.

“While geofencing can have positive benefits for consumers, it is also a technology that has the potential to digitally harass people and interfere with health privacy,” said AG Healey. “Consumers are entitled to privacy in their medical decisions and conditions. This settlement will help ensure that consumers in Massachusetts do not have to worry about being targeted by advertisers when they seek medical care.”

In the press release, the MA OAG explains that that geofencing creates a virtual “fence” around a specified location that is tripped when a person crosses the “fence” with a phone or other mobile device.

Once the geofence is tripped, an advertiser will attempt to display an ad in an open app or web browser on the person’s mobile device. The ad is typically tailored to that location and other information about the user.

A mobile device also may be tagged so that marketing messages can be directly pushed to it whenever the same app or browser page is opened in the future. Users may not realize when they installed these apps that the app would disclose their location information for purposes unrelated to the app, including advertising.

In its advertising campaign, according to the OAG, Copley Advertising LLC set mobile geofences at or near reproductive health centers and methadone clinics in Columbus, New York City, Pittsburgh, Richmond and St. Louis. When a user entered the geofenced area near these locations, consumers’ devices were pushed tagged advertisements for up to 30 days.

The advertisements allegedly included text such as “Pregnancy Help,” “You Have Choices” and “You’re Not Alone” that, if clicked, took recipients to a webpage with information about abortion alternatives and access to a live web chat with a “pregnancy support specialist.”

The settlement, resolved through an Assurance of Discontinuance, resolves allegations that the foregoing practices would violate consumer protection laws in Massachusetts by tracking a consumer’s physical location near or within medical facilities, disclosing that location to third-party advertisers, and targeting the consumer with potentially unwanted advertising based on inferences about his/her private, sensitive and intimate medical or physical condition, all without the consumer’s knowing consent.

Key takeaway: Advertisers must consider the privacy implications of targeted advertising, including the collection, storage and use of sensitive consumer data.

Contact an experienced privacy lawyer for questions regarding online data collection requirements.

Follow the author on Twitter at FTC Defense Lawyer.

ADVERTISING MATERIAL. These materials are provided for informational purposes only and are not to be considered legal advice, nor do they create a lawyer-client relationship. No person should act or rely on any information in this article without seeking the advice of an attorney. Information on previous case results does not guarantee a similar future result. Hinch Newman LLP | 40 Wall St., 35thFloor, New York, NY 10005 | (212) 756-8777.

 

Richard B. Newman is an advertising law and regulatory defense attorney at Hinch Newman LLP focusing on Internet marketing compliance and digital media matters. His practice involves conducting legal compliance reviews of advertising campaigns across all media channels, regularly representing clients in high-profile investigative proceedings and enforcement actions brought by the Federal Trade Commission and state attorneys general throughout the country, advertising and marketing litigation, advising on email and telemarketing best practice protocol implementation, counseling on eCommerce guidelines and promotional marketing programs, and negotiating and drafting legal agreements.

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