The regulatory insider

The ban draws ever nearer, and the recent resignation from TikTok’s North America head of ad sales seem to signal the dire situation for TikTok. This US ban is hanging over their head due to national security concerns, unless ByteDance accepts to divest from the app. The impact on advertisers and creators following this ban would be significant and would raise question when it comes to government control over tech platforms. The US Supreme Court will be hearing arguments on 10 January 2025.

US Surgeon General Vivek Murthy has called for the implementation of risk warnings on alcoholic beverages like the ones on cigarettes, as new research links alcohol to seven types of cancer. An act of Congress is needed to change warning labels, not updated since 1988. Murthy also called for a reassessment on recommended limits for alcohol consumption and boost education efforts on the matter. The WHO's Global Status Report for Alcohol and Health in 2018 indicated that 47 member states mandated health and safety warnings on alcohol. Notably, Ireland is the first country to mandate a warning linking any level of alcohol consumption to cancer.

For the first regulatory insider of 2025, it is good to look back to 2024 to observe trends in Ad Measurement. Measurement has been increasingly become the centre of the talks in advertising, with Google threatening to end third-party cookies. New ad attribution trends have thus (re-)emerged such as incrementality measurement or media mix modelling. New ad measurement metrics were also created by digital-native brands and ecommerce. These new endeavours will continue to evolve and adapt to the challenges that 2025 will bring in this sector.

With IAB Europe releasing the 10th edition of ‘Attitudes to Programmatic Advertising Report’ in early November 2024, a reduction of advertisers transacting in programmatic as well as a reduction in agencies buying CTV programmatically were pointed out. Interestingly, one of the major factors behind this was the lack of trust in the open marketplace that stemmed from the uncertainty over Google’s Privacy Sandbox and its plan to deprecate third-party cookies. IAB Europe notably stated that 50% of advertisers considered their company as not prepared for such a deprecation. This shows that Google’s moves are scaring the market, and while the Privacy Sandbox did make a U-turn this year, the cookie issue is far from being resolved, though the market is longing for a resolution to this problem.

Despite trying to overturn the law that would oblige their platform to be banned or sold in the US, TikTok’s appeal has been rejected in the US. The US drafted this law following allegations that Bytedance (TikTok’s parent company) had links with the Chinese State and posed a threat to national security. TikTok is however planning to fight this decision to the US Supreme Court. The consequences of a ban are already showing as it would strongly benefit TikTok’s rivals such YouTube and Meta, with rival apps such as Instagram already making changes to resemble TikTok. A ban would also hurt the creators and is seeing a strong pushback from users.

The Irish Data Protection Authority requested some guidance from the European Data Protection Board (EDPB) on dealing with AI related questions under the EU privacy rules. The EDPB should publish an opinion on this before the end of the year. The opinion would help to address questions such as ‘does personal data continue to exist within the training model?’. Other than just bringing clarity, such an opinion aims to harmonise interpretation among all DPAs. Reminder: national governments in the EU have until August 2025 to notify the European Commission about which authority they chose to oversee national compliance with the AI Act.

Recent trends tend to hint that many are leaving X, preferring to explore a Blu(er)sky. Renowned publishers such as Politico, The Guardian or The Economist notably made the move. But it seems however that the boycotting is not that straightforward as leaving X seems to make it worse for some, with advertisers even deciding to return to X looking to get on Musk’s and Trump’s good side. As it stands, X is still showing some value to publishers despite its decline, with people still getting their news from it as X gained traffic during US Election Day.

The U.S. Department of Justice argued that Google should break up its illegal monopoly in online search by divesting its Chrome browser. The decision framing it as an illegal monopoly dates back from the August ruling where District Court judge Amit Mehta affirmed that Google was an illegal monopoly for abusing its power over the search business. The DOJ is arguing that the fact that Google owning both Android and Chrome constitutes “a significant challenge” to apply remedies designed to keep the search market competitive, and this break up could restore competition in online search.

A study, requested by the EP Subcommittee on Public Health (SANT) and entitled “Current challenges and opportunities for addressing obesity”, was published on 17 October and brought recommendations for stricter rules when it comes to food marketing and advertising to minors, as such marketing is said to have a negative effect on children’s diet. Various previous actions (such as EU Action Plan on Childhood Obesity, currently under re-evaluation) and existing legislations, such as the AVMSD which is characterized as having its ‘limitations’, are mentioned. The evolution around HFSS rules on advertising to minors is gaining tractions also among MEPs and should be closely following in the months to come.

LinkedIn was fined by the Irish Data Protection Commission (DPC) for violating the GDPR in the way they processed personal data for behavioural analysis and ad targeting. The original complaint came from 2018 by La Quadrature Du Net, a French advocacy group, accusing LinkedIn of using personal data for advertising purposes without a proper legal basis. The DPC ruled that LinkedIn indeed lacked transparency and was misleading when it came to its data usage. This ruling shows that the consent that LinkedIn obtained from users was not ‘informed’, ‘unambiguous’ and ‘freely-given’, and that LinkedIn could not claim ‘legitimate interest’ or a contractual basis as a legal ground for processing.

The Commissioners-designate hearings will take place from 4 to 12 November. The EP adopted a detailed schedule, with Henna Virkunnen’s hearing by the ITRE and IMCO Committees taking place on 12 November. The different questions that the EP committees will ask the commissioners-designate were also published. The latter will be evaluated after their hearing and the Conference of Committee Chairs will eventually assess the outcome of all hearings. The Conference of Presidents will finally decide on 21 November if they decide to close the hearing and to place the vote on the College as a whole. The plenary vote, that will close this whole process, is schedule to take place during the 25-28 November session in Strasbourg for now.

Another recent case involved Meta and data collection, with the German Competition regulator (Bundeskartellamt) concluding their investigation on Meta’s use of data on 10 October 2024. This proceeding was opened back in 2019 when the Bundeskartellamt prohibited Meta from combining personal user data from different sources without user consent. With its recent decision, the regulator deemed Meta’s measures to be sufficient to close the case. Essentially, Meta’s users are now no longer required to consent to Meta collecting a limitless amount of their data, and linking this data to their user accounts, meaning that it also included data of users even when not using Facebook. The new tools introduced thus allow greater control for the users on their data and how all this data is combined.

The long-awaited Digital Fairness Fitness Check was finally published by the European Commission on 3 October 2024. The report provides an assessment of three EU Directives on consumer law (namely the Unfair Commercial Practices Directives, the Consumer Rights Directive and the Unfair Contract Terms Directive) from 2017 to 2023 and their application in the digital environment. The main findings are that while the objectives are partially achieved, EU consumer protection laws remain in need of reform, taking into account the considerable evolution online and how consumers behave or how business use technology to influence consumers (e.g. dark patterns, addictive designs...).

AI and AdTech have been closely linked for a long time, and 2025 will surely see a rise in practical use cases with agencies embracing this progress, integrating it further into the advertising industry. The number of advertisers using AI tools increased from 56% in 2023 to 68% today, with more and more completely trusting AI without human oversight to make campaign decisions. While advertisers still need time to better understand how to best channel AI’s potential, 2025 will surely be a year for more sophisticated AI to be used in advertising, without lumping all automated tools together. At the same time, advertisers and DSPs will need to understand the limitations and the existence of bad faith actors.

Advertising supported streaming has been the success story of 2024. Between the increase in costs and the need to tap new revenue stream as the subscription model began to wither, the ad break came back to dominate in the streaming sector. Netflix notably launched an ad-supported tier to support their growth. By end of 2024, the streaming ad market will have grown to £1.1bn to be 30% of the size of the under-pressure traditional TV ad market. These lower-cost ad-supported tiers seem to be the way forward for the big streamers, though the high rates demanded by streamers compared to broadcast TV remain an issue, and it seems to only benefit the top few big streaming companies.

According to its CFO Sarah Friar, OpenAI is currently considering an ad-based model, though the CFO also said that they “have no active plans to pursue advertising” surely to appease public opinion. For the moment, their main source of revenue stems from their subscription model with its ChatGPT Plus tier. Considering that OpenAI is also restructuring to become a for-profit company and going into online search, this seems to give us hints about what the future of OpenAI and ChatGPT may look like.

Legal issues related to Google’s online advertising keep expanding worldwide. After the US AdTech trials and the UK and EU investigations, Google is also being sued in Canada over alleged anti-competitive conduct in its online advertising services. The Canadian’s Competition authority notably found that the tech giant unlawfully tied its AdTech tools to maintain its dominance on the market, and that Google abused its dominant position. Like the authorities in the other cases, the Canadian authority said that it wants Google to sell off two of its AdTech services (DoubleClick, the publisher ad server, and AdX, their ad exchange) along with paying a fine and to stop engaging in anti-competitive practices.

With the recent election of the far-right candidate Călin Georgescu in Romania, media regulators are suspecting foul play regarding the use of TikTok in influencing election results, with the Romanian authorities flagging various irregularities in the platform’s handling of the election, notably escaping Romanian electoral laws on some occurrences. Romania asked for the EU to investigate, and the EU will have to show that the DSA does yield concrete results in tackling disinformation and election interference.

Elon Musk’s X added Twitch, the live-streaming platform, to its amended lawsuit that started in August against WFA and other companies over an alleged advertising boycott violating U.S. antitrust law. X is attacking WFA’s GARM initiative, whose aim was to avoid that ads end up next to harmful content. Since August, Unilever was dropped as a defendant after reaching an agreement with X. In this amended lawsuit, X is indicating that Twitch, whose parent company is Amazon, purchased no advertising from them since November 2022.

The European Commission fined Meta almost €800 million for pushing its classified ads service on users, with the Commission accusing Meta of tying Facebook Marketplace to the social network Facebook, resulting in unfair terms imposed on other competing ad providers. Meta will be challenging the fine, which has come right after Meta caved and decided to offer less personalized ads in Europe and reducing the price of subscription for no ads service in order to appease the EU regulator.

The NCTA (The Internet & Television Association), representing notably the online advertising industry in the U.S., are trying to block a new rule from the U.S. FTC (Federal Trade Commission) that is requiring companies to offer simple cancellation mechanisms for subscriptions. They argue that this ‘click to cancel’ oversteps the FTC’s authority and was not supported by evidence. They are supported by the Electronic Security Association and the Interactive Advertising Bureau in their fight against this newly adopted rule.

The Polish Ministry of Health proposed a new bill aiming to implement changes on alcohol sales regulations with a focus on packaging due to the recent use of controversial alcohol packaging such as ‘alcohol tubes’ resembling children’s products. To tackle those potentially dangerous practices, a draft amendment to the Act on Sobriety Education and Alcoholism Prevention has been proposed with new rules aimed at limiting alcohol promotion, notably by expanding the definition of ‘promotion’, such as banning beer promotion and increasing penalties for illegal advertising and promotion from €2,000 to €100,000 and from €4,000 to €150,000. The Ministry is also planning to ban retail alcohol stales online. This process is still ongoing but will be worth following closely.

Like the other Commissioner-designates, Virkunnen and her team published her written answers to the European Parliament’s questions, where she addresses key regulatory files concerning advertising. She notably weighs on the AVMSD (Audiovisual Media Services Directive), reaffirming its central role in media policy. She acknowledges the need to coordinate with the CULT Committee to tackle the assessment of the AVMSD by 2026 on its effectiveness, and to identify the new challenges such as new technologies, influencers, the needed enhancing of the level playing field to ultimately benefit consumers... She also touches on the other topics raised by the EP such as AI regulation, DSA enforcement or the EMFA with the setting up of the EBMS (European Board for Media Services) being a priority. Her hearing will take place on 12th November 2024.

Among the many Google-related lawsuits in the US, a federal judge ruled, in a case brought by Epic Games, that Google must allow Android apps made by rivals to access the Google Play store for three years starting next month. Google will appeal the decision and ask for a standstill, but this shows the new tendency in the US of challenging the dominance of tech giants, and how the remedies order by US judges can have substantial consequences. It also reminds of the EU’s digital rules and the Epic Games vs Apple saga that unfolded this year in the EU, where Apple opened up its store to other app marketplaces under the DMA.

On 4 October 2024, the CJEU delivered a ruling on a case that was introduced by Max Schrems back in 2020 accusing Meta of breaching the principles of ‘data minimisation’ and ‘purpose limitation’ by essentially building and keeping a huge data pool for 20 years. EU’s top court decided that personal data collected by social networking platforms for targeted advertising cannot be used indefinitely. This decision could potentially be relevant when it comes to AI training in the future, which uses a considerable amount of user data.