As Amped-Up Ad, Data Privacy Laws Near, Self-Regulated Programs Matter More

As we prepare ourselves for federal (and state) legislation around privacy and advertising, it’s worth taking account of our own industry’s self-regulated programs — both those here at home and worldwide.

As we prepare ourselves for federal (and state) legislation around privacy and advertising, it’s worth taking account of our own industry’s self-regulated programs — both those here at home and worldwide.

Why? Because even in an age of regulation, self-regulation — and adherence to self-regulatory principles and ethics codes of business conduct — matter. One might argue that legal compliance in industry is good enough, but business reputations, brand equity and consumer trust are built on sterner stuff.

Having a code of conduct is exemplary in itself, but I’d like to address a vital component of such codes: enforcement.

Self-Regulated programs
Transparency & Accountability in Advertising Self-Regulation Matter Greatly. | Credit: Chet Dalzell

Credibility in Codes Requires Peer Review & Accountability

Behind the scenes, every day, there are dozens of professionals in our field who serve — as volunteers and as paid professionals — to monitor the ethical practice of advertisers, who devise and update the codes we adhere to, who educate companies that proactively reach out to them, who work with companies and brands that go astray to resolution, and who enforce and refer non-compliant companies to government agencies, when necessary.

They may take complaints directly from consumers, competitors and industry observers. They may employ technologies and their own eyes and ears to monitor the marketplace. They may meet regularly as volunteers as a jury to deliberate on any need for corrective action. And, usually, they have a “contact us, before we contact you” operations effect: brands and businesses can proactively ask ethics programs questions about the “right” way (by the consumer) to execute a marketing practice, so it doesn’t prompt a formal query after a mistake is made after the fact.

Importantly, credibility depends, too, on reporting publicly on outcomes — potentially to “name and shame,” but most often to work cooperatively with businesses and to serve as an industry education vehicle in the reporting of correction and the resolution process. Generally, “punitive” is when a non-cooperative company is referred to a government agency for further action. Government agencies, for their part, tend to wholeheartedly welcome any effective effort to keep the marketplace aligned with the consumer. It helps when brands and consumer interests are in sync.

Accountability Programs Deserve Our Industry’s Expertise & Ongoing Financial Support

All told, these important players in our field serve us well, even as we face what might be referred to as co-regulation (government regulation on top of self-regulation). While any potential business mishap — for example, in the handling of consumer data or the questionable content of an ad — has its own set of facts and ramifications, a demonstration of good-faith efforts to adhere to ethical business practices might be seen as a mitigating factor, even as a brand finds itself needing to take a corrective action.

Agility, flexibility and responsiveness … these are all attributes of successful self-regulation — as well as successful accountability. Effective self-regulation serves to keep pace with innovations in our field, and “point the way” for other companies, as issues arise. (The rigidity of laws rarely can accommodate such innovations.)

While industry professionals may serve as volunteers on juries and review panels — it can be fascinating to serve on such panels — there is almost always an infrastructure of programs and staffs underpinning self-regulation success. Trade associations may finance some of these efforts with membership dollars — but usually businesses can lend their own resources directly, too. It’s great to have a seat at the table.

Marketing Ethics & Self-Regulation Programs — A Partial Listing

In all likelihood, there are potentially many more codes of conduct — particularly in vertical fields (pharma, travel, non-profit, retail, etc.) — but here is a brief listing of advertising-related codes and programs that may be helpful to catalog, bookmark, research and support, with some of which I’ve had the honor to be associated:

Please feel free to use the Comments section to suggest others. And thank you to every volunteer and staff person who serves or has served in an industry accountability capacity. It makes a world of difference, with marketplace trust of advertising and advertisers being the ultimate goal.

Revisiting Do-Not-Call — With 7 Lessons for Us Today

I was a big fan of President Bush 41. I believed strongly in his career of service, which prepared him well as our nation’s leader. I indeed voted for him — twice. I miss his civility and quiet effectiveness as a world leader.

I was a big fan of President Bush 41. I believed strongly in his career of service, which prepared him well as our nation’s leader. I indeed voted for him twice. I miss his civility and quiet effectiveness as a world leader.

But I won’t forget one act of legislation that he signed the Telephone Consumer Protection Act of 1991. Initially, the law required private-sector telemarketers to maintain individual do-not-call lists and honor consumer requests to not call them at home, mirroring industry self-regulation codes at the time. The Federal Communications Commission (FCC) monitored the marketplace and enforced the law but passed, for the time being, on any united do-not-call registry administered by the government, though it had the freedom to do so.

Eventually, however, the Federal Trade Commission (FTC) under Bush 43 stepped in and established a government-administered National Do Not Call (DNC) Registry, which took effect in 2003. As many as 72 percent of Americans may have placed a number on that list.

And so ended most outbound consumer telemarketing … at least those by legitimate companies, that is.

Gee, Has Your Phone Rung Lately?

Now I ask you, today, how’s that still working for us?

During coverage of President George Herbert Walker Bush’s funeral last Wednesday and Thursday, my cell phone, home phone and office phone registered 11 unsolicited, masked and robocalls regarding health insurance, offers of credit, energy savings and a fundraiser.
Now, business-to-business calls are exempt from TCPA. So are non-profit calls and calls from politicians, and calls from businesses where I, as a consumer, have conducted transactions (and have not requested an opt-out).

But I can’t help but think of this law, the registry and its original purpose. There are some lessons for us to consider here.

Lesson 1

Lawmakers love to exempt themselves from regulation of marketing activity they find offensive somehow from the private sector but very effective when it comes time for their own outreach. Funny how that happens.

Lesson 2

Easy government-administered and mandated opt-out solutions National Do Not Call Registry look good on paper. They may even be politically popular. But are they effective in stemming unwanted intrusions? Ah, 15 years later, I think not.

Lesson 3

In setting up the DNC registry, the FTC effectively elevated a mere annoyance unwanted calls at dinnertime to a level of privacy protection that really harmed no one. A simple, albeit repeated, ring on the phone was equated to an outright intrusion into the home. I agree, a ringing phone interrupts. That elevation, however, was unprecedented: Prior restrictions on marketing use of information focused on real harms.

Lesson 4

The private sector has plenty of ways for the consumer to manage in-home peace and tranquility is a DNC registry even needed anymore? Time, technology and circumstances change sometimes rapidly. Advanced in age and wisdom, even my mom and dad know how to screen incoming calls for legit vs. bogus calls. We have plenty of tools that help us manage.

Lesson 5

In the late 1980s, ’90s, and 2000s, consumers had a free, easy way to opt out of national telemarketing calls: the Direct Marketing Association’s Telephone Preference Service. Even a state or two chose TPS as their own state’s DNC registry. Why the FTC even needed to spend taxpayer millions vs. DMA’s dimes to run a registry is a curious mystery. Often, the private sector through self-regulation or marketplace innovations offers consumers no-cost or low-cost options to limiting commercial free speech at the consumer’s discretion.

Lesson 6

Data quality in the hands of the government can be suspect. Eventually, the National DNC Registry became bloated and loaded with cellphones, disconnects, reassigned numbers and other data miscues. Industry complaints in their use of DNC did eventually bring some resolution here but if a private-sector data asset ever got the same lack of quality treatment, then it would have been abandoned years ago by the market.

Lesson 7

Fraud is fraud is fraud and bad guys lurk. Nefarious players are going to flaunt or ignore laws and regulations, anyway so policymakers and enforcers might rather pursue courses of action that still allow beneficial economic activity to happen, while focusing on fraud that is indeed harmful, and not merely an annoyance to some.

Am I Jaded: Is the DNC Registry Today Really About Fewer Calls?

There are some people who measure Do-Not-Call registry success and possibly other would-be Do-Not marketing mandates based on how many Americans have signed on and that’s enough for them (read, easy votes). Blah! The law effectively killed a legitimate marketing activity, undermined commercial free speech and has not kept pace with fraudsters.

Sign-ups are the exact wrong metric to pay attention to … if they care about why such a DNC registry was purportedly designed in the first place. Fifteen years on, this registry has lost its way. What matters is less ringing at dinner time and during funerals.