On 20 January 2022, the European Parliament officially approved its position on the Digital Services Act (DSA) publishing a number of amendments to the previous draft. The DSA will introduce new rules for online platforms in relation to illegal content, which has been the main focus of much of its coverage, however it also intends to introduce a number of new requirements in respect of online advertising. Whilst the text is no by means final, the latest draft of the DSA provides for the following new or updated provisions (many of which stem from IMCO amendments published in December 2021) in relation to online advertising:

  • Children: In one of the most significant amendments to the DSA by MEPs, online platforms will be prohibited from processing the personal data of children for ad targeting purposes and from using “targeting or amplification techniques that process, reveal or infer personal data of minors”. The effect of this is an outright ban on the targeting of children for advertising purposes which, given the direction of travel adtech and children’s data has been headed in for the past few years, does not come as a huge surprise, although the definition of ‘minors’ is not clear – will each member state have the power to vary this, or will the age be uniform across the EU?
  • Sensitive data: similar to the above, online platforms will also be prohibited from using “targeting or amplification techniques that process, reveal or infer” sensitive data, meaning that political beliefs, sexual orientation, race and health data cannot be used in order to provide personalised ads. Many advertising platforms already prohibit targeting based on various ‘sensitive’ characteristics, however the European Parliament believe this amend will prevent predatory advertising aimed at vulnerable groups.
  • Consent and ‘dark patterns’: true to the spirit of consent requirements under the GDPR, and mirroring language found in Article 7(3) online platforms will need to make consent for advertising, such as via a cooker banner, as easy to refuse as it is to give. This amendment should not introduce any ‘new’ rules in relation to consent, given that the rules have always required consent to be as easy to withdraw as to give, so will simply bolster existing ones and make the position on consent clearer for publishers, advertisers and consumers alike. Additionally, and as per guidance emanating from (some) supervisory authorities across the EU, equal prominence must now be given to different consent options, and online platforms must not repeatedly ask for consent from users when they have already refused, or employ any other deceiving or nudging techniques to influence user behaviour (so-called ‘dark patterns’). We hope that this amendment will mark the beginning of more uniform cookie banner and consent requirements across the EU, removing the need for multi-national organisations to consult each local supervisory authority’s advice to ensure compliance, as it often currently the case.
  • Cookie walls: websites will be prohibited from preventing access if a user refuses to give consent and must provide them with “other fair and reasonable options to access the service” including options based on tracking-free advertising. As above, this will hopefully create a benchmark as to the permissibility of cookie walls, given that the position across the EU is certainly not uniform at the moment, with various supervisory authorities setting their own rules as to when they can and cannot be deployed.

NEXT STEPS: This draft of the text serves as starting position for European Parliament’s negotiations to form the final regulation text. Now that MEPs have approved their draft, the European Parliament, the Council of Europe and the European Commission will enter trilogue discussions to negotiate on a final version of the DSA. We aren’t expecting final text until at least 2023, with the first trilogue discussion taking place on 31 January, and there is of course no guarantee that the amendments set out above (or indeed any provisions within the current draft) will survive the next round of scrutiny.

The full text of the European Parliament’s draft of the DSA, including a comparison against the Commission text, can be found here.