EU politicians want Europe’s next big digital law to tackle micro-targeted advertising, by regulating or even banning it

Posted on Oct 27, 2020 by Glyn Moody

Although privacy is by its very nature personal, it is also something that concerns everyone. As a result, local data protection laws can have a global impact. That’s certainly been the case with the EU’s General Data Protection Regulation (GDPR), which has often figured on this blog. The EU is currently working on its next big law in this area, the Digital Services Act (DSA). It is intended as an update to the EU’s e-Commerce Directive, which was passed back in 2000. Clearly, the online world has moved on hugely since then, which means the relevant legislation needs a major overhaul. Although the main impetus for the DSA comes from updating the e-Commerce Directive, it will inevitably touch on many related areas, not least privacy.

As part of the preparatory work for drafting the DSA, three of the European Parliament’s specialist committees have drawn up recommendations for what should be included: those for the Internal Market and Consumer Protection, Legal Affairs, and Civil Liberties. The European Parliament’s news service has produced a good summary of what is in the three DSA reports, which have been sent to the European Commission, the EU body responsible for drawing up new legislation. Once draft legislation exists, it is then debated and modified before eventually becoming EU law – a process that typically takes years. Perhaps of most interest to readers of Privacy News Online is the fact that all three commmittees come out strongly against the use of micro-targeted advertising, and want the DSA to address this explicitly. This is something this blog has been writing about for three years now, as the dangers of this kind of surveillance-based advertising have become clear.

The Internal Market and Consumer Protection report says that online consumers find themselves in an “unbalanced relation to service providers and traders offering services supported by advertising revenue and advertisements that are directly targeting individual consumers, based on the information collected through big data and AI mechanisms”. It notes the potential negative impact of personalized advertising, in particular “micro-targeted and behavioural advertisement”. It calls on the European Commission to introduce “additional rules on targeted advertising and micro-targeting based on the collection of personal data” and to consider regulating micro- and behavioural targeted advertising more strictly in favor of “less intrusive forms of advertising that do not require extensive tracking of user interaction with content”.

The Legal Affairs committee takes an even stronger line. It says that it considers that the “user-targeted amplification of content based on the views or positions presented in such content is one of the most detrimental practices in the digital society”. It is particularly concerned where new content is displayed based on previous user interaction with other “amplified” content, with the purpose of optimising user profiles for targeted advertisements. It is also concerned that such practices rely on “pervasive tracking and data mining”, and calls on the European Commission to analyse the impact of such practices and take appropriate legislative measures. Like the Internal Market and Consumer Protection committee, the Legal Affairs group wants targeted advertising to be regulated more strictly, so as to encourage “less intrusive forms of advertising that do not require any tracking of user interaction with content”. It thinks that showing behavioral advertising should be conditional on users’ “freely given, specific, informed and unambiguous consent”. Lastly, it “invites the Commission to assess options for regulating targeted advertising, including a phase-out leading to a prohibition”. The third report comes from the Civil Liberties committee, and has a strong section on privacy. It notes:

the potential negative impact of micro-targeted and behavioural advertisements and of assessments of individuals, especially minors and vulnerable groups, by interfering in the private life of individuals, posing questions as to the collection and use of the data used to personalise advertising, offer products or services or set prices; confirms that the right of users not to be subject to pervasive tracking when using digital services has been included in GDPR and should be properly enforced across the EU; notes that the Commission has proposed to make targeted content curation subject to an opt-in decision in its proposal for a new regulation concerning the respect for private life and the protection of personal data in electronic communications

The last point is noteworthy: it indicates that the European Commission was already thinking about bringing in a new law to tackle micro-targeted advertising. The three reports should help to ensure that happens. Two of them – from the Internal Market and Consumer Protection, and Legal Affairs committees – are what are known as “legislative initiatives“. That means the European Commission must produce a full justification if it rejects any of the suggestions included in these reports. Taken together with the earlier moves to act on micro-targeted advertising, discussed on this blog last year, it seems clear that people and lawmakers are beginning to turn against the invasive practice of “surveillance capitalism”. One important point to emphasize is that this won’t lead to the collapse of online publishing, as some have claimed. The alternative to micro-targeted advertising – contextual ads – worked perfectly well for newspapers and magazines for most of the 20th century. There is no reason why they cannot do the same for online publications in the 21st century.

Featured image by Ash Crow.