VAUNET Position Paper on a „Digital Omnibus Regulation“ of the European Union

The EU is currently working on a Digital Omnibus Regulation aimed at simplifying digital legislation and reducing bureaucracy in order to create a more competitive regulatory framework. This objective is generally welcome. However, certain proposals regarding the GDPR pose serious disadvantages for advertising-based private media, thereby jeopardizing the diversity and quality of journalistic providers and offerings.

Article 88a of the GDPR not only duplicates regulatory structures but also complicates the requirements for obtaining and managing user consent regarding the use of personal data. This threatens to lead to declining consent rates, which would mean less access to data and consequently declining advertising revenue. Article 88b of the GDPR also creates a disproportionate implementation burden for media outlets through centralized consent systems and thereby promotes gatekeeper structures.

Stricter consent requirements disadvantage private media

Private media outlets need data to market their advertising inventory. This data is often collected via so-called cookies, which are stored on end devices (e.g., smartphones or Smart TVs) and processed after the user’s consent. Furthermore, core functions of these services – such as personalized content recommendations – can only be realized through data processing. In short: access to personal data is simply essential to the business model of private media.

The proposed Article 88a of the GDPR not only incorporates the ePrivacy requirements into the GDPR, but also exacerbates them. It proposes, for instance, a “single-click button” to reject consent that must be integrated into consent banners, and a six-month prohibition on requesting consent should users initially refuse to give consent. The consequences of this: duplicative regulatory structures instead of simplification, as Article 88a of the GDPR stands alongside the ePrivacy Directive. Furthermore, the process of obtaining consent is made more difficult (through the prohibition of re-requesting consent), causing consent rates to drop and resulting in a disproportionate restriction of the financing of journalistic offerings.

Centralized consent systems promote gatekeeper structures at the expense of private media – the media exemption has no effect

But that is not all: Article 88b of the GDPR aims to introduce centralized consent systems. These would allow users to set singular consent preferences in their browser only, which all websites would be required to accept. Website providers and media outlets would no longer be able to request consent themselves. In effect, market-dominant browser providers are interjecting media outlets and users, increasing the risk of new gatekeeper structures. At the same time, this concept only allows for consent to be given in a generalized manner and without regard to the specific media offering, which consequently leads to reduced consent rates and creates data protection risks: Under the GDPR, consent must be “informed” and “specific.”

The European Commission provides for a media exemption in Article 88b (3) of the GDPR, recognizing the importance of private media for democracy and media freedom. Under this exception, media services as defined by the EMFA are exempt from the obligation to respect consent given at the browser level when “providing a media service.” In practice, however, this exception is ineffective for refinancing of private media. Within programmatic advertising, media outlets rely on the collaboration with a multitude of ad-tech providers as well as marketing and analytics platforms to generate data-driven advertising revenue. To obtain user consent for this data use (which does not occur during the provision of their services), media outlets would have to rely on signals from central consent services after all.

Established neutral audience measurement for independent media is threatened

The proposals also question independent and neutral audience measurement, which many private media outlets rely on to market their advertising inventory. The GDPR proposal only permits aggregated data collection for measuring media providers’ own offerings (Art. 88a (4)). This calls into question established video research and audience measurement coalitions (e.g. AGF video research) and JIC models. Should the AGF model be inadmissible, smaller media providers and proprietary platform structures would be disadvantaged.

Deletion of Articles 88a and 88b is necessary

The main point is that Article 88a creates legal uncertainties and jeopardizes the media’s business models as well as independent audience measurement, while Art. 88b (despite a well-intended media exemption) opens the door to new gatekeeper structures. At a time when private media is already under significant refinancing pressure, we need regulation that strengthens private media and does not further weaken it.