“ePrivacy” and unintended consequences in the era of fake news

There is hysteria about online advertising in Brussels these days. The mood risks ushering in new rules on electronic privacy that will penalise European citizens – and potentially European democracy – in unexpected ways.  This statement may be dismissed by some as self-serving alarmism – a disingenuous ratcheting up of the rhetoric to achieve a lobbying aim.  But it is not.  The EU is poised to make impossible data processing that meets all the requirements for legality under the overhaul of the data protection framework adopted in April last year.  The effect will be to eliminate a revenue stream that national news organisations depend on to varying degrees but that almost none is ready to dispense with entirely.  The impact will be most dramatic on regional outlets – large national media and, ironically, smaller metropolitan or niche publications will be relatively better-placed to survive.  The risk of media concentration, something one might have thought that the very structure of the Internet would have consigned to the dustbin of history, will be aggravated.  Other unintended consequences may be a further reinforcement of the already-considerable influence of the vertically-integrated, consumer-facing platforms, many of non-European origin, that are already acting as gatekeepers to, and curators of, the news we read (this said, even they will face regulatory challenges whose ultimate impact will only be fully understood when the EU and national courts are called on to adjudicate cases over the coming decade).

European Commission officials are publicly, avowedly determined to throw the baby out with the bathwater – adopting new, indiscriminate laws that go so far in the direction of protecting citizens from “corporate surveillance” that they lay the ground for the emergence of a two-tier Internet.  The top tier will be the rich universe of online informational, educational, business and entertainment content that we know today, but with this richness accessible only behind a paywall.  The second tier will be a space of less choice that is free at the point of consumption but where the paucity of options will make our most vulnerable citizens more prone to manipulation and less able to leverage the Internet’s democratising potential, whether personally or professionally.

To be clear, clandestine “corporate surveillance” of our personal lives is a highly objectionable notion.  But it is already illegal.  The overhaul of the EU’s data protection rules adopted last year has smitten into oblivion any chance of a company secretly processing your personal data; those who do will be prosecuted and subject to punitive fines of up to EUR 20,000,000 or 4% of their annual global turnover – whichever is higher. In addition, the unauthorized access to computer devices is subject to criminal sanctions up to and including jail under new cybercrime laws.

Corporations can, unfortunately, and mostly against their will, be the vehicle for government surveillance, something that is arguably far more pernicious than having a data centre sitting in Finland “know” that I like children’s clothing from the iconic UK manufacturer Boden.  But the new rules will do nothing to stop such government surveillance. To the contrary, the new rules explicitly enable it and force companies to make it possible for governments to access their customers’ communications data.  Arguably that is where the focus of the current discussion ought to be.

Instead, in the name of protecting the fundamental rights of privacy and data protection – rights which are undeniably sacred – Europe looks likely to sacrifice other things its citizens hold dear, including universal access to quality information and economic opportunity.

There must be a middle ground that enables EU citizens to choose for themselves what they want to pay for online, and what they prefer to access for free in exchange for being prepared to receive data-driven advertising that is transparent and respectful – something my industry is deeply invested in delivering.



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