General News

EU’s Data Protection Advisor latest to call ban on tracking ads

Our news story this week is from TechCrunch, who have an article regarding The European Data Protection Board (EDPB), who have called for the EU to phase out, and eventually prohibit the use of targeted advertising

through tracking of its user’s activity. The EDPB are a body that advises EU lawmakers on how to interpret rules on personal data. They have recently warned the relevant parties that some future regulations that are due to take effect risk infringing on people’s fundamental rights. They therefore recommend that EU lawmakers look to amend the proposed new rules.

The TechCrunch article then goes on to outline the new proposals that the EDPB are referring to, which would make amendments to a number of pieces of legislation, including the Digital Services Act, the Data Governance Act, which encourages the reuse of data in the name of innovation and AI, as well as the Regulation on a European approach for Artificial Intelligence, which ‘sets out a risk-based framework for regulating applications of AI.’ Another area of concern for the EDPB is that they believe the changes would lead to inconsistencies in how EU nations would implement them, and would potentially conflict with existing EU data protection laws, unless there is more clarity in how they should be implemented. The most high profile request the EDPB have made regarding these proposed changes is for EU legislators to impose stricter regulations on organisations using targeted advertising. The EDPB proposes that organisations instead find alternatives that don’t involve the tracking and profiling of users. This would require, the EDPB say, in a statement they released on November 19th, “a phase-out leading to a prohibition of targeted advertising on the basis of pervasive tracking.

The EDPB also state that organisations should be prohibited from profiling children for ad targeting. This would agree with the ICO’s Children’s Code, which states that organisations should always have the rights of children at the forefront of their decision making when it comes to collecting and using children’s data. More on the ICO’s Children’s Code can be read here.

The same day as the EDPB’s statement, the European Parliament’s internal market and consumer protection committee were holding a hearing on targeted advertising, as MEPs consider changes to the Digital Services Act. Similarly, MEPs have also been pushing for further regulations surrounding targeted advertising, highlighting a concern over the potentially harmful outcomes of surveillance based ads, such as ad fraud and individual manipulation. MEPs have called for an outright ban on tracking based advertising to be added to the Digital Services Act. In the committee hearing, which took place on November 19th 2021, there was push back from various parties, however a former Adtech industry insider called the use of people’s personal data in tracking based ads ‘the biggest data breach in history’. 

Whilst it is believed that it will be a difficult task to ban tracking based advertising outright, MEPs do seem to be considering the prohibition of tracking and surveilling minors. The TechCrunch article does however point out how difficult a task this would be to enforce, as it would require robust age verification becoming standard across the internet, something which it currently is extremely far away from. If tracking based advertising of minors does become prohibited however, one way organisations could ensure they are complying with this rule could be to turn off tracking based advertising for all users, if they find that implementing a secure age verification process is too difficult. 

The TechCrunch article then goes on to outline the EDPB’s concern for the protection of fundamental rights also align with the Commission’s proposal to regulate high-risk uses of AI. They say that the current AI Regulation does not go far enough to prevent organisations using AI systems that intend to categorise individuals-for example by using their biometric data, such as facial recognition. Other prohibited ways these systems are designed to categorise people is according to their gender, political/sexual orientation, as well as their gender. The EDPB have been quoted as saying, “The EDPB considers that such systems should be prohibited in the EU and calls on the co-legislators to include such a ban in the AIR”. 

Ultimately, the EDPB are concerned that incoming data regulations that aim to give organisations increased flexibility, and have been described by TechCrunch as “the bloc’s ambitious flotilla of digital regulations updates”, will fail to protect individuals’ fundamental rights, and be interpreted as contravening existing GDPR rules, which will lead to legal uncertainty. It remains unclear how the law makers will respond to the EDPB’s wishes regarding the prohibition of tracking based advertising. With there being alternative advertising methods existing that are just as profitable, as an individual you would hope that those interpreting the rules will listen to the EDPB and impose tighter regulations that prevent the tracking of our activity for the purposes of advertising.