March 4. 2024. 8:30

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EU consumer department to present voluntary pledge over ‘cookie fatigue’

The European Commission’s consumer protection office will launch a voluntary initiative to move away from repetitive cookie banners in what might be the prelude to a legislative proposal.

The cookie pledge is set to be announced next Tuesday (28 March) during the European Consumer Summit, where a session will be dedicated to online advertising and the challenges with cookies.

Following this ‘curtain raiser’, stakeholders like consumer groups, publishers, advertisers and technology companies will be invited to a series of roundtables after the Easter break.

The political drive of the initiative comes directly from the European Commissioner for Justice and Consumers Didier Reynders, who, in an interview with EURACTIV in December, anticipated the intent to address the online users’ growing ‘cookie fatigue’.

Dark patterns, online ads will be potential targets for the next Commission, Reynders says

Transparency in the online advertising market, dark patterns and ‘cookie fatigue’ are all topics on which the European Commission might regulate in the next mandate, the EU’s consumer protection chief told EURACTIV.

European Commissioner for justice and consumer protection, Didier Reynders, …

The top EU official is taking aim at the current system where European consumers are repeatedly asked whether they agree to have their personal data being processed without fully understanding the implications of their choice.

Reynder’s department considers this issue at the intersection between consumer protection and data protection. The assumption is that, when consenting to their data being processed, users enter into a transaction where data is exchanged for a service.

Commercial transactions are covered under consumer law, meaning consumer protection rules would intervene before the data protection regime. However, considering personal data, a commodity exchanged for a service, goes against the mainstream doctrine of data protection authorities.

What’s more, the voluntary pledge of the consumer department is set to clash with the digital policy branch of the Commission, which in 2017 proposed the ePrivacy Regulation to update the current electronic communications regime, the ePrivacy Directive, replacing it as the new ‘cookie law’.

However, the discussions over the ePrivacy Regulation were hijacked by a coalition of member states, led by France, that wanted to introduce provisions allowing law enforcement agencies to access and retain data related to private electronic communications.

After years of political deadlock due first to differences between Paris and Berlin and then between the EU Council and Parliament, the ePrivacy Regulation is likely to be withdrawn if no agreement is reached by the end of this European mandate.

Although there are still no clear ideas about how the cookie pledge could be implemented in practice, EURACTIV understands one of the main options is to represent a measure of the ePrivacy Regulation that would allow users to centralise their preferences via web browsers.

The idea is that users would not be asked for their consent via a cookie banner each time they land on a website. Instead, they would put their preference only once as part of the browser settings, with detailed explanations on why their data is being requested, the potential benefits and the business model behind the processing.

However, this measure was not without controversy in the context of the ePrivacy Regulation, as it gives considerable power to web browser providers. The result might be further market concentration since Google, the world’s largest advertising service, owns Chrome, which is estimated to account for two-thirds of the global market share.

Two industry sources told EURACTIV under the condition of anonymity that this approach circumvents the ePrivacy Regulation’s deliberative process and ignores the fact that cookie banners result from legal requirements steaming from the ePrivacy Directive and General Data Protection Regulation.

Another idea currently on the table is providing a label for publishers that commit not to track users across different websites. Again, market concentration might be an unintended consequence as this will likely favour large publishers able to harvest more data.

EURACTIV understands the EU consumer department is consulting with the Commission’s divisions responsible for digital policy and competition on such matters.

At the same time, the cookie pledge is still far from being defined, as the stakeholder workshops are meant to steer the process that should be finalised by the end of the year, in any case, before the European elections.

In December’s interview, Reynders noted that a “voluntary commitment is maybe a first step that is possible to use to see with some actors what is possible to do online. After that pilot phase, we can see if it’s needed to develop a regulation.”

Put differently, while the initiative is voluntary, it might be the prelude to a hard law when the next Commission enters office. Regulation would ensure a level playing field, as the signatories to the voluntary agreement should not be disadvantaged compared to competitors.

Indeed, the EU commission department has been working on a public consultation to assess whether EU consumer law is fit for a digitalised world, which also touches upon cookies.

The consultation will likely lead to a legislative proposal in the next mandate, already dubbed by some EU officials as the ‘Digital Fairness Act’.