Digital Single Market

The European Digital Single Market (DSM) is essentially about removing national barriers to transactions that take place online. On 6th May 2015 the European Commission released its long-awaited Communication on a strategy for a Digital Single Market. The plan includes a set of targeted actions to be delivered by the Commission by the end of 2016. Digital advertising plays an essential role for the DSM in helping source revenue for digital content, services and applications, making them widely available at little or no cost, as well as driving growth in the digital sector. IAB Europe is committed to ensuring that the European institutions formally recognise digital advertising as a major lever for a successful DSM.

Digital Content Proposal

In December 2015, the European Commission published its legislative proposal for a Directive on certain aspects of cross-border contract rules on the online sale of digital content, alongside a similar proposal for the online sale of tangible goods. The Directive is aimed at what the Commission calls ‘targeted harmonisation’, and if introduced will introduce specific rules on certain aspects of each EU Member State’s contract law provisions.

However, the proposal of the Commission introduces a number of novel concepts, particularly by including in the scope contracts which are concluded for a ‘counter-performance other than money, for example personal data’. While IAB Europe welcomes the recognition that there is a value exchange for online content where no money is paid, the current wording of the proposal does not define data narrowly enough and introduces provisions which are more stringent than those of the recently agreed General Data Protection Regulation (EU) 2016/679 (“GDPR”).

IAB will be advocating for a Directive which is both coherent with the GDPR and will do it’s utmost to caution legislators against the inclusion of incidentally generated data as something which is traded as a counter-performance. The first reading positions of both the Council and the European Parliament are expected towards the end of 2016, at which point trialogue negotiations can be expected.

Enforcement of Intellectual Property Rights Online

On 1 July 2014, the European Commission published a Communication on the Action Plan ‘Towards a renewed consensus on the enforcement of Intellectual Property Rights’ (IPR) in which it paved the way towards a ‘follow the money’ approach, seeking to deprive commercial scale infringers of the revenue flows that drive them into their activities. To do so, the Commission is facilitating the development of voluntary Memoranda of Understanding to reduce the profits of commercial-scale intellectual property infringements in the online environment, following Stakeholder Dialogues involving advertising service providers, payment services and shippers.

IAB Europe is collaborating with other industry players and the European Commission on drafting the principles to which signatories to an eventual Memorandum of Understanding should comply with, representing the online advertising industry’s willingness to combat IPR infringement on a commercial scale.

In it’s DSM Strategy, the Commission also committed to renewing the European copyright framework to better suit the digital age, for which a legislative proposal is expected towards the end of 2016. IAB Europe will be monitoring developments in this area closely.

Other Relevant Topics in the DSM Strategy

• The Commission has published a proposal for a revised Audiovisual Media Services Directive on 25 May 2016. In the words of the Commission, the reform is aimed at bringing the Directive ‘in line with new realities’. In practice this means that the scope will be expanded to cover online on-demand platforms for audiovisual content (such as Netflix or YouTube). Advertising on online video is not included in the scope of the new Directive, but it does encourage the creation of self- and co-regulatory Codes of Conduct to reduce the exposure of minors to certain categories of harmful advertising.
• On 25 May 2016 the Commission also published two documents documenting the results of its analysis on the role of online platforms: a Staff Working Document and a Communication on the Role of Online Platforms. In the working document, eight types of online platforms are identified including online advertising platforms (in particular ad networks and exchanges). In the Communication, the Commission explains that it will favour a sectoral approach and apply a problem-driven analysis when it comes to regulating online platforms, but for now does not commit to drafting any legislation on the topic of online platforms.
• IAB Europe supports and monitors the ‘free flow of data’ initiative and the increased accessibility of public data.