A regulation that could severely curtail online behavioral tracking, and audience measurement and analytics is winding through the European Union (EU) legislative process.

The proposed ePrivacy regulation, “concerning the respect for private life and the protection of personal data in electronic communications,” was first circulated in January. It would repeal the 2002 e-Privacy Directive (home to the requirement for pop-up consent banners for cookies) and replace it with a dramatically more expansive regulation. It is intended to come into effect at the same time as the General Data Protection Regulation (GDPR), on May 25, 2018.

At a hearing on the ePrivacy regulation in the EU Parliament’s Civil Liberties, Justice and Home Affairs Committee (LIBE) on April 11, 2017, Raoul Grünthal, CEO of Swedish publisher Schibsted Sverige, claimed the regulation threatens the livelihood of small publishers, who, “unlike the big players, must work with third parties. The global players can do everything in house. What will happen in practice is that this proposal will favor the big global players." Meanwhile, Benjamin Strahs, a software engineer at Facebook, told the committee that the regulation poses a threat to innovative uses of Big Data and artificial intelligence because it relies so heavily on consent for data processing.

At first glance, the regulation doesn’t sound like much of a problem for marketing research and analytics: “Electronic communications data should be treated as confidential. This means that any interference with the transmission of electronic communications data, whether directly by human intervention or through the intermediation of automated processing by machines, without the consent of all the communicating parties should be prohibited.”

However, the regulation gets more specific. For example: “Interception also occurs when third parties monitor websites visited, timing of the visits, interaction with others, etc., without the consent of the end-user concerned,” including “surreptitiously” monitoring “browsing habits for the purpose of creating end-user profiles.”

It is possible that consumers would have to opt in, both on their browser and on a website, in order for a site or app to use even such simple tracking technology as cookies. Cross-site or cross-device tracking would be quite difficult.

Improving the ePrivacy Regulation

In late 2017, the Insights Association joined the Coalition for Audience Measurement, in order to help improve the ePrivacy Regulation.

As explained by the coalition, the regulation “will have a significant impact on the ability of an ecosystem of sectors and actors to produce audience measurement and/or use its aggregated outputs to measure audience traffic flows, actual media consumption, set the value of media brands and channels, and enable fair and transparent subsidy allocation based on independent figures.”

The policymaking process in Brussels is somewhat opaque, with rewrites happening at the European Commission, Council and Parliament, multiple times, and ongoing negotiation between the three.

The Commission proposed an exemption for audience measurement. Article 8(1)(d) would read, “If it is necessary for web audience measuring, provided that such measurement is carried out by, the provider of the information society service requested by the end-user”

However, the coalition has proposed to clarify that exemption further, by dropping the word “web” and ensuring that measurement can be conducted “on behalf of” a provider. As the Coalition asserted, “the provision should refer to audience measurement in general, rather than exclusively web audience measurement, as audience measurement is not just used to measure audiences on the Internet,” and encompassing service providers ensures proper coverage of the broader marketing research and analytics industry.

So the Coalition has proposed that the exemption in Article 8(1)(d) read instead as, “If it is necessary for audience measuring, provided that such measurement is carried out by, or on behalf of, the provider of the information society service requested by the end-user.”