ePRIVACY: Broadcasters welcome the achievement of the Portuguese Presidency on milestone reached. Call on trilogues to take stock of context & how to ensure crisis hit media ecosystem is able to deliver on media pluralism.

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BRUSSELS, 11 FEBRUARY 2021. The European broadcasting sector welcomes the adoption by the Council of the EU of a General Approach on the ePrivacy regulation. Ensuring that EU citizens’ data is collected and used safely is a priority for the broadcasting sector, as privacy and the respect of personal data are paramount to retaining viewers’ trust.

As the major producers of original and diverse content, broadcasters are at the forefront of Europe´s cultural and entertainment space, providing the news, information, and educational output that underpins the democratic structures essential to our way of life. Advertising revenues enable us to make high quality content, including news, available offline and online to all EU audiences.

We welcome the Portuguese Presidency’s efforts to ensure that responsible use of data, based on the consent of the end-user, continues to be possible for the purpose of advertising. We recognise that negotiations have been difficult and that not all critical issues raised by broadcasters could be addressed, and look forward to the Council’s ongoing considerations of these critical issues in the Trilogues.

To this end, we call on all parties involved in the forthcoming negotiations – Council, Parliament and Commission – to recognise the impact that e-privacy will have on a media environment that increasingly relies on online advertising and is faced by an ongoing crisis and transformation exercise due to the pandemic. Consumers will be the first impacted by measures that impoverish Europe’s media ecosystem, whilst missing the intended targets of these measures. Privacy is a key issue, but it should not be instrumentalised in a way that allows online platforms to reinforce their position on the advertising market. They already do so through various initiatives, regulation should not reinforce this.

Broadcasters need to actually benefit from the only legal basis which supports online advertising in the proposed text: end-user consent. It is crucial that broadcasters be explicitly allowed to make access to their ad-funded content conditional on consent. Any deviation from this would severely affect broadcasters’ ability to offer free-to-air, free online and on-demand models and choose freely how to monetise their content. This would eventually be to the detriment of media pluralism and independence and cultural diversity, greatly undermining Article 11 and 16 of the Charter of Fundamental Rights. In this regard, we regret the last minute changes made to recital 20aaaa which undermines the overall balance of the text.

It will also be crucial to ensure that the legal basis foreseen in article 8 (Protection of end-users’ terminal equipment information) are able to be used in practice. In this regard, we welcome the recent changes to article 4a (consent) which says that “consent directly expressed by an end-user (…) shall prevail over software settings” and the deletion of article 8(1a). Broadly, we would caution against any provisions that would further consolidate the grasp that gatekeeping platforms have over end-users through software settings and prevent broadcasters from establishing a direct link with their users.

For the above reasons, we thank the Portuguese and next Presidencies of the Council and encourage them to continue to scrutinise the issues raised above, taking into account the considerably negative impact that the Parliament’s position would have on Europe’s media environment. Europe’s actions to address abuses by online platforms should avoid unintentionally impacting European media players, the jobs they support and the audiences they inform, educate and entertain.

Grégoire Polad
ACT Director General
gp@acte.be

Matt Payton
AER Secretary General
aer@aereurope.org

Conor Murray
egta Director Regulatory and Public Affairs
conor.murray@egta.com

Daniela Beaujean
VAUNET Managing Director and Legal Advisor
beaujean@vau.net