Article
6 mins read
Updated on 31 May 2023
Our subject expert
Julia Ellis
Senior Solicitor - Commercial
Ad tech contracts are essential for managing data, cookies, fraud, and cyber security in today’s digital advertising landscape. Whether you're launching programmatic campaigns, sharing user data with tech platforms, or protecting your brand from ad fraud, your contract defines the legal boundaries of those relationships.
With increasing pressure to stay compliant and secure, these agreements must go beyond standard terms. They need to address who owns and controls data, how it's shared, and what happens when things go wrong.
Our commercial technology solicitors can help you negotiate, draft, and enforce ad tech contracts that are not only legally sound but also commercially practical, providing you with the clarity and protection you need to operate confidently in a fast-changing market.
The parties to an ad tech contract can vary, depending on the specific arrangement and the nature of the services being provided, but typically will include:
The ad tech industry is based on data-driven advertising strategies.
As a result, data is a valuable asset and the treatment of that data is not only protected in a variety of jurisdictions by a raft of legal regulations and bodies as outlined in our article, legal considerations for digital advertising, but it will also be protected against theft and other illegal use by sophisticated cyber security measures.
An ad tech contract will typically provide clarity on data ownership, usage, compliance, and who is responsible for data governance, privacy, and data protection. Additionally, the contract will provide clarity on measures to combat data breaches, hacks, and fraudulent activity.
Ad tech contracts typically involve the collection and processing of a high volume of sensitive and personal data, including the following:
As a result, data privacy is a crucial consideration in ad tech contracts, which outline rights and obligations to ensure responsible data handling, compliance with laws, mitigation of risks, and the appropriate management of any data breaches.
An ad tech contract will clearly define who owns the valuable data generated through the performance of the ad tech services. This is typically the advertiser. Ownership allows them to control how the data is used, shared and analysed, supporting brand and reputation protection and providing data monetisation and licensing opportunities. Equally, the data owner is often responsible for ensuring that the data is collected and processed in accordance with any data protection and privacy laws.
In addition to ownership, an ad tech contract typically outlines how any generated data can be used and shared, as well as for what purposes. For example, the contract may specify that the ad tech provider may only use the data to provide the contracted services and for a specified period; after this period, the data must be deleted. These limitations protect the advertiser’s data and brand and ensure that the ad tech provider gives appropriate undertakings around data protection, privacy and confidentiality.
If an ad tech provider wishes to share the data with another party, then consent from the advertiser to do this must be provided in the ad tech contract, together with any restrictions on the use of the data by the third party.
Cookies enable the delivery of personalised and targeted ads based on a user’s browsing history.
The ad tech contract will address the use of cookies and will specify the responsibilities of the ad tech provider in managing and using cookies. These responsibilities may include obtaining any relevant customer or user consents and complying with specific cookie legislation. The ad tech provider will typically be required to have GDPR cookie policies in place to ensure that appropriate controls and clear guidelines are in place regarding cookie consent, compliance, and transparency.
A data processing agreement (DPA) governs the processing of personal data. It is typically used when a data controller (the entity that determines the purposes and means of data processing) engages a data processor (a person or organisation that processes personal data) to process personal data.
Whilst an ad tech contract may include some provisions related to data processing, a separate DPA is often necessary to address the specific requirements imposed by specific data protection and privacy laws, including an outline of the responsibilities and obligations of both the ad tech provider (the data processor) and the client/advertiser (the data controller). These responsibilities will typically include details of the purpose, scope and duration of the data processing; measures to be implemented to ensure the security and confidentiality of personal data and procedures for handling data subject rights requests, such as access, rectification, or erasure of personal data.
Take down mechanisms in ad tech contracts govern the removal or ‘take down’ of certain content or ads. These are necessary in situations involving legal non-compliance, infringement of intellectual property rights, data privacy issues, or breach of contract.
The process for taking down content will include notice requirements, protection of data and intellectual property rights, and details of how the parties will deal with any alleged breach of contract.
Ad fraud occurs when ads are viewed by fake users instead of real ones, thereby inflating impressions, clicks, and conversion data.
Any ad tech contract will contain provisions to safeguard against ad fraud, including requiring the ad tech provider to employ sophisticated tools and technologies to filter out illegitimate sources and to place any adverts on trusted platforms in viewable positions.
By including these, advertisers attempt to mitigate the risks associated with ad fraud, enhance the transparency and effectiveness of their campaigns, and establish a framework for cooperation with the ad tech provider to combat fraudulent activities, ensuring that the advertiser only pays for genuine user interactions. In the event of breach of these obligations by the ad tech provider, the advertiser may well be able to terminate the contract and seek damages.
The parties to ad tech contracts will seek to employ cyber security in order to protect data, systems, and infrastructure from cyber threats. In addition to ensuring compliance with relevant cybersecurity regulations, they implement measures such as data encryption, security systems, and regular security assessments and audits to mitigate the risk of data breaches, unauthorised access, and other cybersecurity incidents.
In the event of a breach, the contract will provide for notification and remedial action, and establish any applicable remedies between the parties.
As the digital advertising space becomes more data-driven and technically complex, ensuring your ad tech contracts cover essential areas like data usage, cookie compliance, ad fraud, and cyber security is vital. Your agreements may also need clear provisions addressing quality control and payment mechanisms in online advertising contracts. Whether you're negotiating data rights, drafting a data processing agreement, or building in take-down protections, the strength of your contract defines how well you manage risk and stay compliant.
Working with our commercial technology solicitors, you gain legal advice grounded in real-world advertising practices and tailored to your commercial goals. We help advertisers, platforms, and publishers structure clear, enforceable agreements that stand up to scrutiny and protect your business as it grows.
About our expert
Senior Solicitor - Commercial
Julia is a highly experienced commercial lawyer who helps ambitious businesses manage risk, solve problems and grow with confidence. She advises start-ups, scale-ups and established multinational groups across B2B and B2C markets, bringing more than 20 years’ experience from private practice and in-house legal teams.
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