Happy New Year!

I’ll spare you my list of predictions for 2023 and just dive right into an issue that is in the news this week and surely will continue to garner headlines throughout the year.

Behavioral advertising. Both Meta and Apple were fined by EU regulators this week because of the way they used the personal information of their customers for advertising purposes.

In Canada, we’ve looked at these issues in the past. The gist of the case law in this country stood for the proposition that if you were a paying customer or if the organization was using your sensitive information, then you were to be given the option of opting in to receive behavioral advertising. In the 2009 Facebook case, the social network successfully argued that if you were receiving the product for free, then your information could be used for advertising purposes as long as there was adequate notice — which, back then, could be in the terms of use and/or privacy statement.

It would seem EU regulators are interpreting their law as being more restrictive than the paradigm that has developed in Canada. Providing notice to the customer (who is receiving an account for free) in the terms of use or privacy notice is not considered sufficient anymore.

I wonder if the European approach will influence Canadian regulators in future adtech cases. And I’m sure there will be some. I noticed my bank recently started delivering ads to me on their website and application when I’m in my account, based on behavioral characteristics. These aren’t ads about my bank’s other offerings — they’re from third parties. I’m a paying customer so I would have thought that even under the more lenient Canadian approach they should have asked for me to opt in prior to initiating this project. And if they are basing the ads on my financial information — which I think would automatically be considered sensitive — then they have two reasons to suggest that my opt-in consent was required.

To be sure, even though these cases have been around for about 15 years now, because of how technology changes and because of how ads are placed, the privacy analysis continues to evolve. Curious to see what comes of it in Canada in 2023.

Have a great first weekend of the year. I’m heading to Mont Tremblant for some skiing.