The regulatory insider

The report maps out the transposed commercial communication obligations affecting video-sharing platforms (VSPs). In many markets, these have have been supplemented by national legislators and complemented by self- and co-regulation. In general, rules applying to TV and VOD remain more stringent than those VSPs must follow.

On February 2nd, MEPs expressed their support for the negotiating position proposed by the lead Committee IMCO thus giving the rapporteur a mandate to start the talks in trilogues. Despite welcomed amendments reinforcing the distinction between editorial content and advertising, the text presents important shortcomings for the media. The adopted definition of political advertising remains too broad; the approach endorsed in Council should be favoured moving forward.

In the context of the work of the European Data Protection Board (EDPB), national Data Protection Authorities (DPA) presented their positions concerning the practice of cookie banners. While there does not seem to be a common European approach on all matters, all bodies agree that the wording 'continue without accepting' or 'refuse' does not constitute a valid alternative to granting consent, when it is the only other option and in the absence of sufficient visual support to draw the user to this choice. These positions do not prejudge DPAs' decisions on each complaint regarding each websites.

"Belgium’s Data Protection Authority  announced on January 12th that it has approved IAB Europe’s action plan for the Transparency and Consent Framework, a technical infrastructure used for collecting and sending user consent for use of their personal data in digital advertising. The news has been heralded as a win by IAB Europe, which states that the decision is a validation of the legality of the TCF."

The Irish Data Protection Authority found Facebook and Instagram's legal basis (contractual necessity) for processing personal data for the purpose of personalised advertising in breach of the GDPR. Meta, who does not believe that consent is the appropriate legal basis in that particular case, will have 3 months to adjust its operation. According to Dan Ives, an analyst at Wedbush Securities and reported by the New York Times, the judgment puts 5 to 7 percent of Meta’s overall advertising revenue at risk.

The Court of Justice of the European Union clarifies the scope of the concept of 'advertising for medicinal products' within the meaning of EU law (Directive 2001/83) as to cover both a specific medicinal product and indeterminate medicinal products. It also ruled on the compatibility of the transposed Directive into national law, even if the rules are made more stringent, because it meets the essential aim of safeguarding public health. The ruling is available here.

ERGA adopted its position paper on the European Commission’s proposal for a European Media Freedom Act (EMFA). It touches upon, among other points, the provisions relating to audience measurement, state advertising and the group's future effective independence.

"Although Do Not Track failed as an effort to make it easier for people to opt out of being tracked and targeted online, its spirit lives on in the Global Privacy Control. Despite their similarities, the Global Privacy Control seems more likely to succeed where Do Not Track struggled: getting companies to actually comply with it, as covered in the explainer video in the article.'

A significant number of household products (such as food, drink and toiletries) are marketed as green or environmentally friendly and the Competition and Markets Authority (CMA) has decided to examine the accuracy of these claims. The authority says the move is an expansion of ongoing work by the CMA into ‘greenwashing’, which seeks to get to the bottom of whether products and services that claim to be green or eco-friendly are being marketed to shoppers accurately.

On January 24th, the US Justice department along with several States filed a civil antitrust suit against Google for monopolizing multiple digital advertising technology products in violation of Sections 1 and 2 of the Sherman Act. Of the 10 requests for relief lodged by the plaintiffs, one orders the divestiture of, 'at minimum, the google Ad Manage suite, including both Google's publisher ad server, DFP and Google's ad exchange, AdX, along with any additional structural relief as needed to cure any anticompetitive harm'.

CULT MEPs drafted their amendments to the European Parliament's own initiative  AVMSD implementation report. Among other interesting suggestions, amendments 43, 44 and 52 express the need for more regulatory symmetry between TV channels and VOD services, and video-sharing platforms when it comes to rules pertaining to advertising, while amendment 147 includes a call to the European Commission to act upon influencer marketing. The vote in this committee will not take place before the month of March 2023.

Four major European telecom operators (Deutsche Telekom, Organe, Telefónica and Vodafone) notified the European Commission on January 6th, 2023, of their proposed concentration to offer 'privacy-led, digital identification solutions to support the digital marketing and advertising activities of brands and publishers'. The Commission has until February 10th to take a decision and allow or reject the joint venture plans. The filing here.

Sweden is holding the Presidency of the Council of the EU in the first half of 2023. The Presidency aims progress on many important files, including the European Media Freedom Act, the political advertising proposal, and consumer protection.

The video campaign, created thanks to the online media Konbini, seeks to help content creators, agencies and brands follow legislation and industry codes of practice.

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.