ePrivacy: On the Way to the EU Digital Single Market

The EU attempts to extend its internal market to a digital sphere. This would continue an ongoing process driving economic growth and European cooperation. However, the online world is not without its cookie monsters.

An internal market where goods, persons and capital can move freely between the member states has often been regarded as one of the greatest achievements of the EU to date. Indeed, the initial objective of the European Economic Community – the predecessor of the European Union – lies in bringing more economic benefits to its members by minimising barriers to trade. The Community, and subsequently the EU, has worked towards strengthening one Union-wide marketplace by removing border tariffs, harmonising product standards and restricting practices where a state gives certain advantages to local goods over those coming from other parts of the EU.
Since its inception, the competences of the Union have, of course, been expanded to cover more policy areas where it has been deemed necessary and there has been political will. However, it is worth bearing in mind that economic goals i.e. completing the internal market, still remain at the heart of the EU’s agenda. Even among all the crises that the EU has faced over time, this is a purpose that no member state really disagrees with.
Presently, the EU Internal Market not only covers tangible retail goods, but it also expands to digital products as well. To this end, the European Commission published in May 2015 the Digital Single Market Strategy, which aims to develop the openness of the European market further in the digital sphere.
The strategy includes a roadmap of actions to be completed by the end of the current Commission’s mandate (2019). One of the many action points includes reviewing the current e-Privacy Directive. This piece of legislation covers rules regarding electronic communications and the processing of such data with, for example, online trackers known as ‘cookies’. By accepting cookies, a piece of software will be installed on your device that can send information on the websites you visit to companies such as Amazon, which can then recommend particular products. Trackers also enable targeted online advertising.
Out of all the roadmap items, the e-Privacy directive has in particular raised strong reactions from a wide group of stakeholders. It is not a simple action point on the Commission’s agenda but has even been labelled as a ‘cookie monster’. It touches on an issue that any citizen can feel strongly towards – namely, the right to withhold information about one’s website browsing habits and behaviour on Facebook, Whatsapp, Instagram and other social media tools to third parties. It is a very sensitive topic that not only relates to the EU member states’ economic interests, but has implications on the fundamental human right to privacy. What kind of digital footprint do you want to leave behind, for how long and accessible to whom? Unsurprisingly, citizen advocates have been very vocal in demanding EU decision-makers to impose as strict rules as possible in keeping individuals’ data safe from third parties. And they have put on a strong campaign!

An example of a pro-privacy campaign
On the other side of the interest spectrum are companies whose business model relies on consumers’ online data, especially targeted behavioural advertising. Inevitably, it would be detrimental for their existence to limit the processing of information that users generate online. For this reason, they are endorsing different data pseudonymisation and anonymisation techniques to satisfy the needs of the new legislation.
Besides businesses, which collect and process online data, stricter ePrivacy rules could also affect websites that are run by advertising-generated income. This category includes news sites, which instead of paid subscriptions are funded by advertisers. Therefore the proposed new legislation could even bring citizens’ access to information and freedom of journalism in Europe into question! Are you ready to pay for reading news from many different sources and finding the best cooking recipes? The demand to have more consumer privacy could backfire by leading to an increase of pay-walls and by blocking access to certain websites for users who have not paid for their services. These lines of interest groups have also been campaigning actively in Brussels.

An example of a campaign against privacy by default
At this point, one might begin to see how challenging it can be to meet an agreement that strikes the right balance. The Estonian Member of the European Parliament, Marju Lauristin, who was in charge of drafting the position of the European Parliament, for instance, attended around 120 meetings with different stakeholders before getting a mandate from her colleagues to start inter-institutional negotiations. And there is still a sizeable group of MEPs (280 out of 618 plenary voters) who disagree with the current position. In mid-October, the centre-right political groups were close to bringing down the mandate and re-opening the Parliament’s report. The Council of the European Union, consisting of ministers of all the EU member states, has not yet agreed on their position.
Compared to companies selling traditional goods across borders, enterprises in the online world are clearly in need of slightly different rules. The right to the protection of personal data is a new fundamental right that needs special attention. We need to think about the importance of privacy but at the same time, consider whether complete anonymity and wiping of all the clicks online will be realistic to achieve. Are we risking the future of the European Digital Single Market by imposing rules that are so strict that the local economy will suffer? On the other hand, more privacy-centered rules could steer future technological developments in a direction that could allow more personal information to be kept secret.
No matter the final answer, it will be important for the EU decision-makers to find solutions that will survive future technological developments in order to prevent an early return to the drawing board. With political will and right infrastructure, Europe has the opportunity to be a frontrunner and to set a global example for other non-EU countries on how to regulate the digital marketplace. This way, the next great achievement of the EU might just as well be creating a functioning digital single market fit for the modern world. And we can proceed in this direction by taming the cookie monster.
TEXT Sofia Karttunen
PHOTO Unsplash

Sofia holds a Master of Laws degree (LL.M.) in European Public Law and Governance and is especially interested in EU internal market law and communications. Sofia is currently working with advertising and communication agencies’ interest representation in Brussels.