NY Times Article Shines Light on the Need for Compliance with FTC Legal Requirements for Smart TV Data.

Smart TV data practices have found their way into the news again and with that comes an opportunity to both educate consumers and reiterate our calls for unity around compliant opt-ins to bring transparency to the market and help unlock the great potential of smart TVs.

The recent New York Times reporting about the use of automated content recognition (ACR) technology on Smart TVs shines much needed light on certain industry practices that may well be out-of-sync with now long-standing minimum fair information standards for all Smart TV manufacturers.  

Very simply, viewing data should not be marketed to ad agencies, data brokers, or publishers as “opt-in” data, unless the consumers received adequate, inescapable, relevant notice prior to activating ACR technology on their units.


In February 2017, VIZIO announced its settlement with the U.S. Federal Trade Commission regarding the use of automated content recognition.  In the FTC complaint that was filed, the FTC alleged for the first time that viewing data was sensitive information which should be treated in a similar fashion as financial, health, and geolocation information.  

In this precedent-setting matter of first impression, even if (as in VIZIO’s case) the data is only paired with IP Address, not Personally Identifiable Information, the FTC determined that unavoidable, explicit privacy notices and opt-in consent were required. Specifically, the Smart TV must:

  • Prominently disclose to the consumer, separate and apart from any “privacy policy,” “terms of use” page, or other similar document:

    • the types of viewing data that will be collected and used,

    • the types of viewing data that will be shared with third parties;

    • the identity or specific categories of such third parties; and

    • all purposes for the sharing of such information; and

  • Obtain the consumer’s affirmative express consent at the time the disclosure is made

Benefits of Sharing Viewing Data

With 18 months of experience meeting these new requirements with an industry-leading explanation and opt-in process, VIZIO is more confident than ever that consumers, publishers, and advertisers alike have benefitted.  Clear, unavoidable explanations about what ACR technology is and how the data improves programming, ad effectiveness, and consumer experience alike serve all constituencies.

However, as the NYT article clearly documents, some in our industry are collecting “opt-in” consent to ACR technology features, without really explaining what’s collected, how it may be enriched, and how it is shared and used and monetized by downstream recipients.

What Ad Agencies and Marketers Can Do

We at Inscape believe that market forces can and should help bring the Smart TV industry into alignment with these now longstanding FTC legal requirements.  Ad agencies, brands, data brokers and other purchasers and users of viewing data should be asking the same questions the New York Times reporters, Consumer Reports, and others are asking.

Purchasers and users of Viewing Data should be asking to see the interfaces that precede the collection of “opt-in” consent – it just makes good business sense. In today’s regulatory and business environment, to buy Viewing Data without comparing the wording of consumer disclosures against the FTC’s legal requirements strikes us as a very risky practice.

We also encourage you to read the five questions anyone thinking of utilizing ACR data should ask, as told by industry veteran and Smart TV advertising pioneer, Tracey Scheppach.