Advertising & Marketing

On 6 March 2024, the ICO issued a call for views on so-called “Consent or pay” models, where a user of a service has the option to consent to processing of their data for one or more purposes (typically targeted advertising), or pay a (higher) fee to access the service without their data being processed for those purposes. This is sometimes referred to as “pay or okay”.

The ICO has provided an “initial view” of these models, stating that UK data protection law does not outright prohibit them. It also sets out factors to consider when implementing these models and welcomes the views of publishers, advertisers, intermediaries, civil society, academia and other interested stakeholders. The consultation is open until 17 April 2024.Continue Reading UK ICO Launches a Consultation on “Consent or Pay” Business Models

On March 7, 2024, the CJEU rendered its judgement in the IAB Europe case (C-604/22).   The case relates to role of IAB Europe, a sector organization, in its Transparency and Consent Framework (“TCF”) used by companies to record the GDPR consent granted (or not granted) by a user and to document compliance with their GDPR transparency obligations.  The framework is widely used in digital advertising, including in real-time bidding scenarios; below, we set out the court’s three main findings.Continue Reading CJEU Decides the IAB Europe Case, Expanding the Concept of Controllership

2023 was marked by the adoption of key EU legislation in the field of data privacy, such as the Digital Services Act (“DSA”) and Digital Markets Act (“DMA”). Both introduce limitations and obligations on online platforms that process personal data for digital advertising. Ahead of the DSA and DMA’s implementation deadlines in February and March 2024 respectively, we will discuss below the key requirements they introduce specifically in relation to online targeted advertising. This blog post complements our previous blog post on the EU’s targeted advertising rules.Continue Reading Rules on Targeted Advertising: What do the Digital Markets Act and Digital Services Act Say?

On January 16, 2024, the Belgian Supervisory Authority sanctioned a data broker for violating several provisions of the GDPR.  In particular, the data broker processed personal data without an appropriate legal basis and in violation of its transparency obligation.

The more than 100-page decision explains that until July 2021 the data broker collected personal data from different sources and sold the data to interested third parties (“data delivery services”).  The company also provided “data quality services” aimed at improving the quality and relevance of the personal data held by its clients.  The relevant data were mainly used for advertising by postal mail.Continue Reading Belgian Supervisory Authority Sanctions Data Broker

On November 16, 2023, the European Data Protection Board (“EDPB”) issued draft Guidelines 2/2023 on Technical Scope of Art. 5(3) of ePrivacy Directive (“Guidelines”).  Article 5(3) is the provision that requires consent before storing or accessing information on an end user’s device. Over the years it has become known as the “cookie rule,” but it is technology-agnostic.  The Guidelines expand upon guidance issued by the Article 29 Working Group in 2014, and are intended to clarify when the requirement applies to new tracking methods.  The Guidelines are open to public consultation through December 28, 2023. 

The Guidelines identify and explain the four key elements that trigger the obligation to obtain opt-in consent under Article 5(3) of the ePrivacy Directive (“ePD”).  The Guidelines set forth an extremely broad interpretation of what constitutes “storing” and “accessing” information on a user’s device that arguably goes beyond the plain meaning of these terms.  This interpretation is likely to be relevant for companies considering how to approach the discontinuation of third-party cookies on many browsers.    Continue Reading EDPB Issues Draft Guidelines on Technical Scope of ePrivacy Directive Rules for Storage and Access

On June 30, the FTC announced that it had issued a new notice of proposed rulemaking that addresses fake reviews and testimonials.  The rule prohibits practices the Commissioners have identified as problematic in public statements for the past several years.  For instance, when announcing the review of the Endorsement Guides over a year ago, Chair Khan noted that “consumers’ increasing reliance on online reviews can also incentivize advertisers to harness fake reviews, suppress negative reviews, and amplify positive ones.”  The proposed rule covers a variety of topics including fake reviews, review hijacking, purchasing reviews, employee reviews, review suppression, and the use of fake indicators of social media influence.  Several of the new provisions track principles set forth in prior FTC cases, or target specific practices previously identified in the Endorsement Guides.  Below we’ve summarized the requirements in the proposed rule.  The NPRM will be open for public comment for 60 days once it is posted in the federal register.  As of today, it has not yet been posted.Continue Reading FTC Proposes New Rulemaking Focused on Reviews and Testimonials