Programmatic Media, The Law, and Marketing Transformation


Simon Francis, CEO of Flock, was invited by Lewis Silkin to speak at the “Programmatically Speak Too” event at their offices recently. The other panellists were James Evans, Assistant General Counsel at Verizon Media, and Jo Holdaway, Chief Data Officer at ESI Media and current Chair of the AOP, and the panel was chaired by Simon Entwistle, Partner at Lewis Silkin.

In a packed room 80 advertisers, agency, publisher and technology leaders discussed recent guidance and governance issued by the UK’s Information Commissioners Office (ICO), Interactive Advertising Bureau (IAB), and the European Court of Justice regarding programmatic advertising and data privacy.

Recent guidance seeks to ensure that every website publisher offers “active consent” to consumers for the range of cookies required for effective programmatic advertising. If taken to extremes this legal approach could potentially mean that;

a) Many publishers incur significant new costs and lose advertising revenue and go out of business, this is not in consumers or advertisers interests.

b) That many consumers “opt out” of ALL consent meaning that advertisers lose targeting ability thereby increasing marketing costs significantly, and diminishing ROI. This may threaten innovation and smaller businesses viability.

Flock’s key advice to advertisers is as follows:

a) Ensure you have fully mapped your end to end media buying processes, and done a full risk assessment of data processing with regard programmatic media buying, throughout the media ecosystem.

b) Consider your responsibilities and those of your agency and media partners in ensuring that data is used lawfully, appropriately, and sustainably.

c) Consider your contractual position with regards liability for any breach of law; who’s liable if/when things go wrong? What is the remedy?

d) If you have in-housed, or in-sourced, have you considered fully your new responsibilities and liabilities and do you have insurance to cover these?

e) Do you have appropriate audit processes in place with regular on-going reviews to maintain your policies, and evolve your offering as the market matures?

f) Are you actively lobbying (with trade associates and other industry bodies) for the right to advertise programmatically?

So, there is plenty to think about in the months ahead. With Publisher compliance to new guidance due in January 2020 there really is no time to wait to think about your position with regards this complex and important topic. If you’d like advice please contact us.