FEDMA tackles DFA, vulnerable consumers and a fair path for marketing personalization
On the 23rd of September FEDMA held its annual event, A Path Forward for Fair Personalized Marketing in EU Policy, an opportunity to exchange with policymakers, industry leaders and privacy experts on the balance between consumer privacy and data innovation.
"As outlined in Recital 4 of the GDPR, the right to protection processing of personal data is a fundamental right, not an absolute right right, and must be balanced with other rights such as the right to conduct a business. There is nothing more fundamental to the right to conduct a business than attracting new customers and retaining existing ones." said Chris Combemale, FEDMA Co Chair.
Panel I: Streamlining Fair Data Protection: Saving GDPR and the Risk-Based Approach
"The risk based approach of the GDPR remains its most important element, providing flexibility" said Karolina Mojzesowicz, Deputy Head of Unit Data Protection at DG JUST, European Commission. While there is no appetite to reopen the GDPR, there is a need from the industry for some targeted adjustment, especially to provide clarity on the application of the text to technology developments such as AI. From a regulatory point of view, the risk based approach is also important, as it supports a number of good practices. Yet, Alexandra Jaspar, Member of the Executive Committee, APD, also recognises that not all actors follow the rules, and engage in responsible processing, raising the question of the best way to tackle the issue, without having to revert to a more prescriptive approach. "Privacy enhancing technologies (PETs) can provide an additional level of protection, and are not reserved solely to large companies" said Sachiko Scheuing, European Privacy and AI Governance Officer, Acxiom, arguing that technology such as clean rooms and trusted third parties can help striking the right balance. FEDMA will be publishing a dedicated paper on PETs in October.
Zooming in on the long outdated rules on cookies from the 2009 ePrivacy Directive, the European Commission is engaged in a reality check exercise trying to understand how the current rules focused on the protection of the device solely on the basis of user's consent work in today's internet and looking to adapt them, while maintaining the right level of protection. An approach more aligned with the GDPR would ensure that the rights of the data subject do not get overridden by the interest of the controller, added Sachiko Scheuing.
The 3 speakers converged on the importance of having a more coherent interpretation of the GDPR across Member States, but also across the growing number of data legislations. Both the Commission's work on the coming Digital Omnibus, and the APD's strong coordination with the other European regulators through the EDPB demonstrate this same objective of coherence. DPAs are encouraged to produce more concrete and intuitive support material, especially for SMEs, such as templates, accessible guidelines, dialogues with DPAs and the EDPB. While DPAs decisions are always on very specific cases, it is undeniable that they tend to create a jurisprudence equivalent, where coordinated interpretation is essential for companies legal certainty.
Keynote by Rob Beenders, Belgian Minister of Consumer Protection, the fight against Social Fraud, Persons with Disabilities and Equal Opportunities
Minister Beenders gave an insightful and thought-provoking keynote on the topic of AI transformation, its impact on advertising creation and AI driven personalization, both from a point of view of consumer protection and equal opportunity. Transparency is a central element, consumers should know if an ad has been created using AI, or if AI has been used in the targeting of the ad. Concerns around misleading ad content, manipulation and dark patterns are also high in the Minister's priorities. The expected Digital Fairness Act proposal from the European Commission will likely tackle this issue. AI also raises concerns around discrimination to users, bias and stereotyping, inclusiveness and digital exclusions. However, legislation is only part of the solution, and a lot will be expected from the industry for the development of ethical best practices.
Panel II: Responsible Personalization: How Marketers Can Create Fair Relevance for Customers
Responding to some of the minister's concerns, Benedicte Van Ormelingen, Team Leader for Digital Fairness, European Commission, explained that after a fitness check exercise in 2024, the Commission is seeking feedback on specific areas, such as dark patterns and personalization using individuals' vulnerabilities. Both Nathalie Laneret, VP Government Affairs and Public Policy, Criteo and Matt Radford, CEO, Vulnerable Paths believe that legislations are already in place to address these issues, such as the UCPD, yet regulators seems to consider the rules to be incompatible with today's digital environment. One clear point that transpired is the need for a better definition of what are vulnerabilities. "All consumers get vulnerable at some point in their life, however we tend to identify this vulnerable state only after it happens" added Matt. Assessing environments which lead to vulnerabilities instead of individual's data point might be a better approach to protecting individuals. For Criteo, fair personalization starts with legal compliance, enriched with an ethical approach, and internal governance and processes to follow through.
"Personalization is not a problem in itself. Exploitation and manipulation of the user are the problem" clarified Benedicte. The current rules on advertising in the DSA are meant for online platforms. The Commission raises the question whether these rules should be extended to all actors in the sector, also bringing fairness between the different companies. Looking at the other end of the issue, the speakers also discuss the importance of being able to market specific products to vulnerable groups in order to meet their specific needs (ex: hearing aids). "While much focus is given on negative marketing practices, more visibility should be given to the added value of supporting people in vulnerable circumstances" concluded Matt.
