An agreement on the rules for online advertising in the EU’s Digital Services Act (DSA) seems to be within reach, according to a new compromise text seen by EURACTIV.
The text was proposed by the French EU presidency that currently leads the discussion among member states in the EU Council. EU diplomats debated the compromise on Wednesday (13 April), ahead of what could possibly be the last high-level meeting on 22 April.
According to an EU diplomatic source, the member states raised no red lines but a few stressed that the DSA is not the appropriate legislation to address this issue. However, the French presidency agreed to these measures in a broader deal on the Digital Markets Act, the DSA’s sister proposal.
“I would bet that this is the final text or very close,” a European Parliament official told EURACTIV. “It will get a majority of the shadows,” the official said, referring to the representatives of the political groups.
Online protection of minors
One of the critical demands of the European Parliament is to forbid online ads targeting minors and processing sensitive data. Last week, EURACTIV revealed that MEPs were working on a proposal to ban targeted ads by default unless the platform was sure the user was not a minor.
A proposal of the French presidency for a new Article 23b entails that the platforms should not present advertising based on profiling when they are ‘aware’ that the user is a minor, nor they should process additional personal data to assess their age.
The Council’s text does not go as far as the ban by default but requires platforms to design appropriate and proportionate measures for protecting minors. This wording was moved to the text’s preamble, which is legally less binding than an article.
The document specifies that a platform is considered ‘accessible’ to minors when it is directly meant or predominantly used by minors or, more broadly, when the platform is aware that some users are minors.
Sensitive data profiling
The French presidency also proposed banning advertising that uses sensitive data such as religious beliefs, sexual orientation, and political views to profile users, in line with lawmakers’ requests.
However, several member states raised doubts that, in this scenario, users would not even have the possibility to choose whether they could be targeted or not, as is the case in the European Commission’s proposal for regulating political advertising.
That was reflected in the Council’s initial proposal to refer to the explicit consent notion already present in the GDPR, the EU’s flagship data protection framework. However, this version was rejected by left-to-centre MEPs as a consent-based solution does not go as far as a ban.
EURACTIV understands that the opposing EU countries are not enough to block the proposal.
According to a source informed on the matter, the total ban on sensitive data is also not an ideal solution for the Commission given the different approach taken in the political ads regulation.
Nevertheless, that regulation is under the responsibility of the Commission’s Directorate-General for Justice and Consumers, which is not in a position to push for an alignment with the DSA since it is not involved in the negotiations.
By contrast, a civil society representative told EURACTIV that “the sensitive data ban as proposed still misses the mark. It is not enough to ban platforms from using people’s sensitive data to target them with ads. The DSA must ban platforms from any kind of profiling or targeting that reveals or infers a person’s sensitive characteristics”.
Last Friday, far-right French presidential candidate Eric Zemmour sent a text message to thousands of French Jews, trying to mobilise the community ahead of the first round of the presidential election with anti-Muslim content. The French privacy watchdog CNIL opened an investigation.
“That targeting was based on sensitive inferences made about people to guess they were Jewish,” the civil society source added. “The France story should really serve as a huge warning to EU politicians, and the French EU presidency in particular. A very small tweak and they can fix this.”
According to a four-column document dated 12 April and leaked by Contexte, the French presidency is also proposing a compromise proposal against dark patterns, a measure strongly requested by the European Parliament.
“Providers of online platforms shall not design, organise or operate their online interfaces which are necessary to comply with the obligations under this Regulation in a way that either purposefully or in effect deceives or manipulates recipients of the service, by subverting or impairing their autonomy, decision-making or choices,” the new Article 23a reads.
An industry representative told EURACTIV that the wording of this article raised questions about the potential impact on the advertising sector, notably for the ad repositories or the transparency interfaces for online ads required by the DSA. At the same time, the notion of ‘choices’ seems to resemble that of consent in the GDPR.
According to this document, the Commission would issue guidance on the application of this paragraph in consultation with the Board of national authorities.
“I think that the Commission realises that a lot of this article is already covered by UCPD [Unfair Commercial Practices Directive] and GDPR, but they hope that they will be able to put all of this together, delivering guidance accordingly,” the industry source said.
[Edited by Zoran Radosavljevic]