Digital advertising through personal computers and mobile devices is estimated to comprise nearly 50 percent of marketing dollars by 2021.  This growing industry uses consumer data collected from online forms and through automated tracking technologies such as pixel tags and cookies to present consumers with interest-based advertising, social media advertising, search result optimization, and email marketing. 

Digital marketing is governed by various federal and state laws and industry self-regulatory principals.  At the federal level, the following laws have been used to regulate digital marketing:

  • Section 5 of the Federal Trade Commission (FTC) Act grants the FTC authority to deter unfair or deceptive acts or practices in commerce.1  Under this authority, the FTC can bring enforcement actions against advertisers for ads that it deems to be materially misleading or deceptive.  
  • The Telephone Consumers Protection Act (TCPA) gives the FCC authority to adopt rules governing the sending of commercial messages by email, text, or fax, and gives both the FCC and FTC—as well as state attorneys general and individual consumers—the right to enforce those rules.2
  • The Controlling the Assault of Non-Solicited Pornography And Marketing (CAN-SPAM) Act imposes certain requirements on the delivery of commercial email messages and is enforced by the FTC.3

The digital advertising industry, through nonprofit coalitions such as the Network Advertising Initiative (NAI) and the Digital Advertising Alliance (DAA), has set forth various guidelines for protecting consumer privacy in the digital marketing ecosystem. Both the NAI Code and DAA Self-Regulatory Principles center on transparency, consumer control, and accountability.4

State laws may also regulate digital marketing practices.  For example, the California Online Privacy Protection Act (CalOPPA) requires that website operators that collect personally identifiable information must conspicuously post a privacy policy that describes (i) the information they collect from consumers; (ii) whether consumers can review and request changes; (iii) how the operator responds to “do not track” signals; and (iv) whether third parties may collect information about the consumers’ online activities over time across websites or online services.5

15 USC § 45.

2 47 USC § 227.

3 15 USC §§ 7701-7713.

See Nat’l Advert. Initiative, 2018 Code of Conduct (2018); Dig. Advert. All., DAA Self-Regulatory Principles, available here (last visited Feb. 22, 2019).

Cal. Bus. & Prof. Code §§ 22575-22579.

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