Dear Member(s) of European Parliament,

As you consider updates to the ePrivacy Directive, we are writing to offer the perspective of premium publishers of digital media content. Digital Content Next (DCN) was founded in 2001 and remains the only U.S.-based trade association that exclusively represents premium digital content creators. Several of our members are based in Europe and many more have a substantial presence in Europe.  DCN members include many of the Internet’s most trusted and respected media brands, collectively reaching an unduplicated audience of 230.6 million unique visitors – or 100% of the U.S. online population monthly. Importantly, DCN members maintain direct, trusted relationships with consumers and advertisers.

We agree with the need to update and modernize the ePrivacy Directive to account for new technologies that are employed to track consumers in the digital world and hope to see a text which will more closely harmonize the Directive with the General Data Protection Regulation (GDPR).  As you consider changes to the text of the Draft Regulation, we encourage you to focus on consumer expectations.

Context is Key

Consumers have nearly unlimited choices over where they can find news and entertainment online.  If a consumer does not trust the site or the content, they can and do choose to go elsewhere. This creates a dynamic in which consumer-facing websites and apps must continue to earn the trust of their audiences or risk losing them. A key to maintaining that trust is to collect and use a consumer’s data in ways that meet with the consumer’s expectations.  For example, when consumers visit a premium publisher’s site or app, they expect their data will be collected and used in ways to benefit their experience for purposes such as analytics, fraud protection, personalization, subscriptions and content recommendation.  Consumers also are not likely to be concerned when their data will be used for benign purposes such as audience measurement or other uses where data is aggregated. At the same time, publishers need to be able to monetize their content through advertising in order to minimize costs for consumers. Certainly, there are also societal benefits from properly funded news organizations.

However, most consumers do not approve of their data being collected in one context and then used in a different context.  For instance, absent any transparency, a consumer would not expect or even know that a data broker or a broadband service provider might be tracking their activity across the internet for the purpose of building a profile about them, which could then be used to deliver targeted advertising.  A consumer might see the value in allowing a social media company or a search engine to track their activity while using their website or app, but that consumer would not approve of those companies continuing to track them long after the consumer had left their domain and visited a different website.

Our position is that the ePrivacy Regulation should require transparency and consumer consent in cases where consumer data will be collected and used across multiple contexts.Consumers understand and can see the benefits of the collection and use of their data within a single context. Conversely, collection and use of consumer data across different contexts is far less transparent and  is  much  less  likely  to  result in  direct benefits  for  consumers.  While differentiating between data collection and use within a single context versus data collection and use across multiple contexts would map with an average consumer’s expectation, it would have the additional benefit of avoiding over-notification of consumers.  As the Draft Regulation notes in (22) of the preamble, “end-users are overloaded with requests to provide consent.” When consumers are flooded with notifications in digital media,they tend to become fatigued. They can also become annoyed when notifications cause friction in their digital experience – especially when they are simply attempting to access content from a trusted source.  By focusing consent requirements on non-transparent data collection and use, the ePrivacy Regulation would minimize friction where consumers have trusted relationships while also creating a choice mechanism where a relationship does not exist.

The Role of Browsers

Finally, the current version of the ePrivacy Regulation suggests a central role for browsers in obtaining and storing consumer consent.  While there may be merits to providing clear choices to consumers at the browser level, we are concerned that by making the browsers the sole point of obtaining consent for tracking, there could be an unintended consequence of increasing the leverage of large companies with browsers or platforms in the digital ecosystem, such as Google and Facebook, particularly if their primary business is selling advertising across the web thereby competing with publishers. At the same time, it would not make sense to require publishers to ask consumers for consent to track all of their activity across the internet. Indeed, publishers would likely ask consumers for consent to be tracked by the publisher and their chosen third party partners solely while on the site.  As you consider the role that browsers can and should play, it is important that options are preserved and encouraged for narrow consent required for delivery of the context in which value is being delivered to the consumer.

We appreciate your efforts to protect the rights of European citizens. Please let us know if we can be of assistance.

Sincerely,

Jason Kint
CEO
Digital Content Next