Policymakers must avoid leading EU into age of data prohibition

This piece was originally published in The Parliament Magazine on 17 March 2017. 

Data-driven advertising provides an indispensable revenue stream without which European media would be hard-pressed to manage the challenging transition to the digital environment.

Without revenues from data-driven advertising, media plurality would decline over the medium- to long-term, with obvious negative implications for an informed citizenry, the basis of any functioning democracy.

Unfortunately, the cookie provision in the European Commission’s proposed ePrivacy regulation would reduce the ability of digital media and services to rely on much-needed advertising revenues.

A law on the lines of the proposed ePrivacy regulation would forever change the internet as we know it for the worse, by undermining the advertising business model upon which millions of people in Europe depend for access to content and services free at the point of access, whether as individuals or small businesses.

The proposal also deviates in important ways from the principles of the new general data protection regulation (GDPR). The strict requirements on processing data are not inspired by data protection but by an approach that would be better described as “data prohibition”. Data protection is an essential requirement for a functioning digital society and protected as a fundamental right in Europe.

Data prohibition is a pessimistic and backward-looking notion that does not align with the digital reality of modern Europeans’ lives. Yet the ePrivacy regulation’s cookie rules as proposed by the Commission would do just that: lead Europe into an age of data prohibition.

The GDPR covers the very same ground that the ePrivacy’s cookie provisions purport to address. For example, secretly monitoring people’s browsing habits for profiling purposes – not something that any legitimate business would be interested in doing anyway – is already outlawed by the GDPR, though protecting people from such tracking has been repeatedly and disingenuously cited as justification for the proposal.

A hard-won compromise, the GDPR carefully balances protecting an EU citizen’s personal data with opportunities to process data to not only just fund but improve services that citizens use as well. Unfortunately, an ePrivacy regulation along the lines of the current proposal, would undermine the GDPR and much of the intended value attributed to it.

The consequences of the proposal on businesses providing digital content and services would be as pernicious as predictable: With opportunities for funding services through data-driven advertising dwindling, content and services would have to lower their quality to reduce costs, move behind a paywall, or close down altogether.

The law needs to consider the interests of people to have access to quality information at little or no cost, as well as remember that there are people for whom paying for everything is simply not an option, and who are every bit as entitled to access to that quality information as their more affluent peers.

One can only hope that the co-legislators recognise the flaws and inconsistencies of the proposed ePrivacy regulation and address them, especially by re-introducing important missing elements of flexibility.

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