Digital Discrimination: What Every Marketer Should Know To Stay Out Of Hot Water

The era of digital marketing has opened up exciting avenues to connect with audiences on a deeper level — yet the rise in advantageous targeting hasn’t been met without new potential legal ramifications.

Psychographic-level beliefs, behaviors, interests, professions and so many more layers are now utilized by smart marketers to reach highly-qualified groups of people. In some cases, they’re also used to exclude specific groups of people.

Intentionally or unintentionally, this is where targeting meets legal murky water.

Marketing: A Legal Perspective
AIMCLEAR CEO Laura Weintraub has nearly two decades of private practice experience as an attorney. Now steering the ship of a digital marketing and PR agency, she’s informing the industry on key legal issues.

Today, Weintraub will take the stage at the American Conference Institute’s fourth annual Summit On Digital Advertising Compliance in New York City to bridge the gap between marketing and legality with a discussion on paid targeting campaigns and discrimination.

“Marketers need to understand the basic legal landscape of what they’re marketing,” Weintraub said. “Some areas are regulated, others are not.”

Protected Classes And Exclusionary Targeting
So, what industries should marketers be paying close attention? Weintraub says sectors with protected classes (age, race, gender, disability, national origin, religion, etc.) are the main concern here: employment, finance, public accommodation and housing, to name a few.

When advertising a job, for example, strict employment laws prohibit discrimination based on protected classes. Excluding a specific race, gender or religion is just as illegal as putting up signs in a storefront indicating people of a certain race need not apply.

Employment targeting laws are fairly cut and dry, yet there are still questions as to whether other industries could fall victim to discrimination lawsuits.

If, for example, a restaurant operating in Washington D.C. during the pope’s visit in September rolled out a targeted paid campaign on Facebook to attract those in town for the visit and chose to exclude all religious followers outside of Catholicism, would that fall under discrimination laws… or is that just good marketing?

“This is unsettled territory,” Weintraub said. “Since the beginning of time, advertising campaigns have targeted the best possible audiences for the message. Commercials on ‘Murder, She Wrote’ would be different than commercials you would see on a children’s cartoon program, for example. Those were based on basic demographic information.”

However, for smart marketers who are simply using psychographic layered targeting to reach audiences interested in a product or service, there shouldn’t be too much cause for concern.

“If you’re marketing milk or candy bars or t-shirts, there aren’t generally laws that can prohibit targeting a particular audience based on their inclusion of a protected class,” Weintraub said. “In fact, it would make advertising some products nearly impossible.”

Playing Inside Legal Boundaries: Anticipating The Future
Because targeting lists aren’t posted alongside advertisements, there is a question as to whether or not — or how — a business or agency would get caught for discriminatory targeting. Right now, businesses throughout the nation could be running paid employment advertisements that exclude a class of people.

“This is an ongoing issue regardless of whether the information is online or not,” Weintraub said. “Statistics of who sees the ad, perhaps based on sample profiles, may be used. Agencies’ records of targeting could be a source of inquiry, as well.”

To date, there is no precedent for legal discrimination violations in paid targeting campaigns — but that doesn’t mean it’s not coming. After all, Facebook exclusionary targeting options have only been around for roughly a year.

“Transparency seems to be where we’re headed and that will lend itself to more people more easily understanding how and why they are (or are not) targeted for a particular ad,” Weintraub said.

Going to be in New York this week? See Laura Weintraub speak Oct. 21 at the Carlton Hotel from 11 a.m. to 12 p.m.

Sign Up For Our Newsletter

Stay Connected