Behavioral targeting (“BT”) is an advertising technique that receives a great deal of attention due in part to the balkanized self-regulatory policies that address consumer protection issues. The majority of the self-regulation policies, including the BT principles proposed by the Federal Trade Commission (“FTC”) focus on privacy issues but fail to discuss the impact BT may have on the right to control the commercial use of one’s identity. In discussing the right of publicity, many legal scholars agree that everyone has a right to control the commercial use of his or her identity, regardless of his or her status as a celebrity. Further, some theories of determining what constitutes one’s “identity” would cover the information that is collected for BT purposes. Under this theory, BT practices may be violating more legal issues than those addressed in the current self-regulatory policies. Often, when regulating activities on the internet, jurisdictional boundaries are blurred and federal mandated rules are more effective than self-regulatory ones. This comment discusses how the current self-regulatory approach of BT may overlook legal issues, mainly one’s right of publicity. Additionally, this comment proposes that the FTC enact a new rule to enforce best BT practices to avoid right of publicity violations when utilizing this advertising tool.
Andrea Stein Fuelleman, Right of Publicity: Is Behavioral Targeting Violating the Right to Control Your Identity Online?, 10 J. Marshall Rev. Intell. Prop. L. 811 (2011)