Kiri

To the attention of Minister Tõnis Lukas Ministry of Culture Brussels, 18.10.2019 Dear Minister Lukas, We are writing on behalf of EMMA (European Magazine Media Association), ENPA (European Newspaper Publishers’ Association), EPC (European Publishers’ Council), NME (News Media Europe), AIG (Advertising Information Group), AMC (Audience Measurement Coalition), FEDMA (Federation of European Direct and Interactive Marketing), AER (Association of European Radios), EGTA (European Group of Television Advertising), GESTE (Les editeurs de contenus et services en ligne) and SPIR (The Association for Internet Progress), which together represent a large array of interests inside the European digital media market in order to express our strongest concerns with regard to the latest Finnish Presidency text, published on 17 October 2019. The undersigned associations urge you not to agree to this text, which is far from being ready to be elevated to the political level, as there are many outstanding issues unresolved. The proposed drafts of the e-Privacy Regulation, including the latest text of the Finnish Presidency, would consolidate market dominance of the same handful of players, whose power it actually seeks to curtail. Our member companies are under extreme competitive pressure from a handful of dominant online platforms and this Regulation will have a detrimental impact on competition, innovation and to the consumers it seeks to protect. The e-Privacy Regulation in its current form creates new competition issues and will (indirectly) only benefit large log-in platforms. We believe that many Member States understand our concerns and have tried to mitigate the worst aspects of the proposal through various amendments. In spite of such efforts, the text remains unacceptable and would be a backward step in European objectives to protect media pluralism, diversity and the formation of opinions in Europe. This is because it puts the future financial viability of independent, advertising funded media at risk. We would like to highlight some of the many outstanding questions, in particular the question of conditionality of access to content. The majority of freely accessible journalistic editorial content is financed by advertising revenues. The use of suppliers (cookies) is essential to monetize the vast array of services which free and independent media across Europe provides. This is why it is essential that the EU legislators adopt a provision which clearly guarantees that access to an information society service can and should be made conditional on the user’s acceptance of cookies. Recital 20 fails to provide a solution and it forces media outlets to offer an equivalent offer without data processing, essentially asking publishers to offer their content for free. A potential obligation for service providers to provide a cookie-free option under the current wording of the recital would have far reaching effects in terms of media diversity and would lead to a (partial) expropriation of our intellectual property. In our view an obligation to offer an alternative service, e.g. one that is subject to direct monetary payment, can only be justified when the service holds a dominant market position (Recital 43 GDPR: "Imbalance of power") and is inappropriate for the media sector which is characterized by a diverse and plural offer to citizens We further note that the EU has cross-cutting fundamental rights obligations in the area of freedom of expression, which creates an obligation to consider the effect of regulatory measures on media pluralism as per Article 11 of the Charter of Fundamental Rights of the European Union. We would like to share with you some key findings of an expert opinion by the leading expert in European and data protection law, Prof Dr Joachim Kühling (University of Regensburg)1: - The report states that - contrary to what is often claimed but has never been substantiated - there is extensive margin for how and what can be regulated. The GDPR does not legally limit this margin with regards to the e-Privacy Regulation. In particular, it does not prevent the Regulation from deviating from GDPR, nor does it only allow for stricter regulations than those under GDPR. - The expert opinion examines the proposals on the question of admissibility and the limits of a conditional relationship between consent and service provision, as well as the system of the legal bases and the fact that the current draft provides no legal basis other than consent for the economic purposes of refinancing media services. It is clear that the proposals of the Commission, Council and the European Parliament are unacceptable under European law. Although Article 10 is deleted in the current Council text, we are genuinely concerned that Article 10 will be reintroduced under pressure from the Parliament and the owners of the dominant browser, without any safeguard in the Council text, that providers or software have to ensure that any consent requested by a website and given to the website is applied by the software immediately. Having regard to the extreme position enshrined in the European Parliament’s report and the weak safeguards contained in the Council’s text, we expect the trilogue to result in a text which - through Articles 8 to 10 - will solidify the data supremacy of the large US log-inplatforms. Indeed, Articles 8 to 10 entrust the design of the privacy user interface to market dominant platforms. This power over the consumer and their competitors will clearly lead to less control over privacy, not more. Moreover, such provisions will increase content providers’ dependency on large platforms and will incentivise the latter to close off their walled data gardens. As such, we urge the Council most strongly to take more time to carefully reflect on the various questions that remain unanswered: for example, the inflexible legal bases; the scope of application; the ambiguous relationship with GDPR; and its profound impact on competition in the digital market. 1 The English translation will be available and circulated shortly. Alternatively, Member States should request the European Commission to reassess the e-Privacy proposal in the light of the ongoing evolution of the GDPR, to reconsider its impact on competition, and to ideally repeal the proposal. Therefore, if you believe, as we do, that media diversity is a cornerstone of European democracy and a vital instrument for the formation of opinion in Europe, please do not proceed to an agreement on the current Presidency text. Yours sincerely, Ilias Konteas Ilias Konteas Angela Mills Wade Wout van Wijk EMMA ENPA EPC NME Ilias.konteas@magazinem [email protected] Angela.Mills- wout.vanwijk@newsmediaeur edia.eu [email protected] ope.eu Dr. Bernd Nauen Mathilde Fiquet Agata Nowacka Matt Payton AIG FEDMA AMC AER [email protected] [email protected] [email protected] [email protected] Amelie Delahaie Connor Murray Jana Břeská Geste EGTA SPIR [email protected] [email protected] [email protected] RESULTS OF THE LEGAL OPINION ON THE “LEGAL PARAMETERS OF THE DESIGN OF SECTOR-SPECIFIC PROVISIONS OF LAWFULNESS AND PARTICULARLY OF CONSENT IN THE EPRIVACY REGULATION” PREPARED BY UNIV.-PROF. DR. IUR. JÜRGEN KÜHLING, LL.M. REGENSBURG ON BEHALF OF THE FOLLOWING ASSOCIATIONS: THE FEDERATION OF GERMAN NEWSPAPER PUBLISHERS (BDZV) THE GERMAN ASSOCIATION FOR THE DIGITAL ECONOMY (BVDW) DEUTSCHE DIALOGMARKETING VERBAND E.V. (DDV) (GERMAN DIALOGUE MARKETING ASSOCIATION) GESAMTVERBAND DER KOMMUNIKATIONSAGENTUREN E.V. (GWA) (GENERAL ASSOCIATION OF COMMUNICATION AGENCIES) / ORGANISATION DER MEDIAAGENTUREN E.V. (OMG) (ORGANISATION OF MEDIA AGENCIES) HANDELSVERBAND DEUTSCHLAND E.V. (HDE) (TRADE ASSOCIATION GERMANY) MARKENVERBAND E.V. (TRADEMARK ASSOCIATION) / ORGANISATION WERBUNGTREIBENDE IM MARKENVERBAND (OWM) (ORGANISATION OF ADVERTISERS IN THE TRADEMARK ASSOCIATION) VERBAND DEUTSCHER AUSKUNFTS- UND VERZEICHNISMEDIEN E.V. (VDAV) (ASSOCIATION OF GERMAN INFORMATION AND DIRECTORY MEDIA) VERBAND PRIVATER MEDIEN E. V. (VAUNET) (ASSOCIATION FOR PRIVATE MEDIA) VERBAND DEUTSCHER ZEITSCHRIFTENVERLEGER E.V. (VDZ) (ASSOCIATION OF GERMAN MAGAZINE PUBLISHERS) ZENTRALVERBAND DER DEUTSCHEN WERBEWIRTSCHAFT E.V. (ZAW) (CENTRAL ASSOCIATION FOR THE GERMAN ADVERTISING INDUSTRY) REGENSBURG, 16 OCTOBER 2019 Kühling, Legal Parameters of Sector-Specific Provisions of Lawfulness in the ePrivacy Regulation - Results A. Results 1. The maxim “Lex specialis derogat legi generali” also takes effect in the interpretation and application of EU secondary legislation. If the ePrivacy Regulation contains sector specific provisions for electronic communications services which are stricter or less strict or that simply deviate, these override, in accordance with this maxim, the parallel provisions in the GDPR. 2. In this respect, there are no distinctions with regard to the GDPR. In fact, the provisions in Art. 95 and 98 GDPR confirm this approach of freely determining a sector specific regulation – an approach which is taken in the ePrivacy directive still into force and can be taken in the ePrivacy Regulation in future. 3. This regulatory leeway of the EU legislator is also consistent with considerations based on democratic theory and the value of democracy as well as democratic principles (Art. 2; 9 et seq. TEU). 4. In particular, there is no restriction of a dogmatic or legally systematic nature by which only stricter provisions (i.e. more in favour of data privacy) would be allowed to be created in sector-specific regulation. To this extent, no ratchet effect (“effet cliquet”) of the GDPR takes effect either. As a result, an ePrivacy Regulation can provide for provisions concerning electronic communications services that are stricter or less strict than those in the GDPR or that simply deviate from them, provided that this is in line with the rule of law and the fundamental rights as enshrined in the Charter of Fundamen- tal Rights of the European Union (CFR). 5. With regard to legal policy, a wide spectrum of designs are possible, ranging from complete dispensation with sector-specific stipulations to the design of sector-specific provisions of lawfulness of processing. The latter can be effected in the form of sector- specific regulation of consent or other rules justifying processing as necessary (e.g. for the purposes of the legitimate interests pursued by the controller or by a third party). 6. Any design must balance the different, sometimes conflicting, interests in the processing of data on the one hand and the dispensation with it for the protection of privacy on the other. The regulatory design must ensure that the services desired by the consumers can be financed, taking into account the appropriate level of data protection with regard to the data subjects. Furthermore, the regulation should be neutral in terms of effects on competition, i.e. it should grant the different, similarly protected business models comparable opportunities of implementation when it comes to financing advertising. 7. The case-law of the European Court of Justice to date has left the EU legislator a great deal of leeway in data privacy law with regard to whether it wishes to make sector- specific regulations or not – particularly with respect to data processing by companies. This applies both generally and specifically with regard to the regulation of electronic communications services. 8. Here, the architecture of the Charter of Fundamental Rights and the case-law of the European Court of Justice specifically do not show that electronic communications data 2 Kühling, Legal Parameters of Sector-Specific Provisions of Lawfulness in the ePrivacy Regulation - Results are more strictly protected per se by Art. 7 CFR than other data is by Art. 8 CFR. The Court of Justice applies both fundamental rights simultaneously and understands them as being broadly parallel. To a greater degree, it is a question of the data which is specifically affected (how sensitive is it?) and the depth of the encroachment (e.g. very strict rules on data retention). 9. The – only partly – conflicting demands of data protection according to Art. 7 and 8 CFR on the one hand and particularly the freedom to conduct a business as per Art. 16 CFR on the other, which are able to establish a free flow of data, require an appropriate balance of interests and balanced provisions on lawfulness of processing. 10. If it is a question of the (partial) financing of media products via data processing, the freedom of the media as per Art. 11(2) CFR takes effect as well. This provides protection against legislative measures jeopardising the financing conditions of the media. In this respect, the rules to be created must ensure media services to be financially feasible in practice as well. As online media services depend on advertising revenues for their existence and this can be very strongly affected depending on the design of the processing rules set down in the ePrivacy Regulation, this financing channel must not be jeopardised. Otherwise, this would constitute a sharp encroachment on the freedom of the media according to Art. 11(2) CFR which could not be justified by any interests based on protection of personal data according to Art. 7 and 8 CFR and would not be in keeping with an appropriate understanding of informational self-determination either. 11. The safeguarding of the financing conditions of media offerings, including by (personalised) advertising, and the data processing required to do so are therefore to be guaranteed to an appropriate extent just as any restrictions with regard to the legal right to property according to Art. 17 CFR are to be accepted as long as it is a question of enabling data processing in the user’s end devices. Thus, in terms of fundamental rights, it is in no way predetermined that only consent comes into consideration as an element of lawfulness of processing in this respect, or how this should specifically be designed. The only thing that is decisive is that an appropriate balance be found between the interests concerned. This excludes in particular designs which push back positions based on fundamental rights too much without sufficiently substantial grounds (e.g. the freedom of the media being repressed by financing requirements of media services). as not being consistent with fundamental rights 12. In other respects, the framework in its entirety must satisfy the balance of interests shown: therefore, the more narrowly defined the rules on lawfulness of processing are, the greater the significance of consent is. Conversely, it likewise applies that the stricter the requirements are with regard to consent, the more important the remaining rules on lawfulness are. Here, it is to be ensured that the requirements with regard to the rules on lawfulness including consent can be met from a legal, factual and technical point of view. This particularly applies to the possibilities of giving consent and applies here to the question of whether the access to an offering financed by advertising can be made dependent on the giving of consent. If the formulation of the envisaged regulations here is so exacting that they can only be complied with great difficulty, the remaining rules on 3 Kühling, Legal Parameters of Sector-Specific Provisions of Lawfulness in the ePrivacy Regulation - Results lawfulness of processing must be formulated in such a way that they enable data processing to the necessary extent and thereby ensure a reasonable balance of interests. 13. This in no way conflicts with designs of consent (or other rules on lawfulness of processing) that also enable models of a data-financed provision of services precisely in order to protect informational self-determination (“service in return for data” instead of or in addition to “service in return for payment” or mixed models). 14. The regulatory proposals presented so far do not satisfy this programme of requirements. They eliminate service offerings in the media sector beyond the big Internet platforms that are based on consent and financed by advertising. Overall, they account for considerable encroachments on the freedom to conduct a business as per Art. 16 CFR and also, through the jeopardised financing possibilities of non-login based business models in particular, on the freedom of the media according to Art. 11(2) CFR. These encroachments are not sufficiently justified by the right to the protection of personal data according to Art. 7 and 8 CFR. 15. However, to ensure that the consent was given freely, care is to be taken that dominant companies in the market are not able to require a consent from the user on a take-it-or- leave-it basis which is ultimately not “freely” given because there is no other service offering that is similar and therefore no alternative. Here, dominant companies in the market could be required to offer different payment models as a result. 16. On the other hand, the fundamental rights concerning data privacy by no means require a data-financed service to be offered in the same configuration or particularly be free-of- charge if the user refuses to finance the service with his or her data. This would not be consistent with an appropriate understanding of a fundamental right to the protection of personal data according to Art. 7 and 8 CFR in the sense of informational self-determi- nation, and, above all, it could not be reconciled with the goal of a suitable balance with respect to the corporate interests in financing and therefore the consumer interest in the further provision of services as well. Legislation should therefore respect the possibility that the provision of a service is conditional on consent to the processing of data outside the special constellation of dominant companies which was presented in the previous paragraph. 17. These results and particularly a limited prohibition of coupling or a differentiated decoupling requirement that is fundamentally in line with the GDPR but is not sufficiently clearly defined in it apply to any design of any access to data on end devices by service providers according to the planned version of Art. 8 of the ePrivacy Regulation and also apply to all consent provisions in the ePrivacy Regulation. Regensburg, 16 October 2019 Univ.-Prof. Dr. iur. Jürgen Kühling, LL.M. 4 To the attention of Tõnis Lukas Minister of Culture Brussels, 02.12.2019 RE: Progress Report on ePrivacy in the TELE Council of Ministers Dear Minister, We write to you on behalf of the following trade associations: EMMA (European Magazine Media Association), ENPA (European Newspaper Publishers’ Association), EPC (European Publishers’ Council), AIG (Advertising Information Group), AMC (Audience Measurement Coalition), FEDMA (Federation of European Direct and Interactive Marketing), AER (Association of European Radios), EGTA (European Group of Television Advertising), GESTE (Les editeurs de contenus et services en ligne) and SPIR (The Association for Internet Progress), which together represent a large array of interests inside the European digital media market. We welcome the Member State’s clear decision in COREPER to reject a negotiation mandate on the basis of the current text as further work is still required and to only submit a progress report in the upcoming TTE Council. The progress report makes it increasingly clear that a balanced agreement is nearly impossible to reach with the current Commission’s proposal and even more so in view of the European Parliament’s report. It is empirical that the text was negotiated during six presidencies, that the TTE Council exchanged views on the proposal twice and that the admirable target which is the need for future proof privacy-protective and flexible rules remains elusive. We therefore kindly encourage Member States to request the European Commission to repeal their current proposal and to work on a new legal instrument that would safeguard confidentially of networks and communications and ensure a level playing field between platforms and the media ecosystem. 1 When it comes to data-driven advertising the Commission needs to ensure a level playing field amongst all sectors and business models. Favouring dominant platforms by allowing data driven advertising inside the so-called walled gardens while depriving publishers and many other players of similar opportunities, and therefore revenues, gives an unwarranted and unjustified advantage to global players to the detriment of the creative industries in Europe. We wholeheartedly support the goal of providing for more meaningful privacy for European citizens and strongly believe a balanced proposal can support digital markets and the publishing sector, ensure media diversity and media freedom and privacy for European citizens. The changes brought to the text in Council appear to salvage some of the highly problematic issues but cannot amend the serious aspects of the draft text. In view of the undue and drastic terms of the European Parliament’s report, even if more substantial changes are made to the current text in an attempt address the serious concerns, it is improbable for a text to ever be strong enough to reach an appropriate and workable compromise during trilogue negotiations. A new proposal would have to address the impact on competition and provide a more flexible approach, true reflecting the various legal solutions the GDPR provides with its various legal bases. As such, Member States should ask the European Commission to (1) withdraw the proposal in the light of the ongoing evolution of the GDPR, (2) propose a new draft that takes into consideration the impact of privacy rules on competition in the online advertising market or (3) propose fundamental changes together with the Presidency that would provide for a level playing field in the digital market. Yours sincerely, Ilias Konteas Ilias Konteas Angela Mills Wade Dr. Bernd Nauen EMMA ENPA EPC AIG Ilias.konteas@magazinem [email protected] Angela.Mills- [email protected] edia.eu [email protected] Mathilde Fiquet Agata Nowacka Matt Payton Connor Murray FEDMA AMC AER EGTA [email protected] [email protected] matt.payton@aereurope. [email protected] org Amelien Delahaie Jana Břeská Geste SPIR [email protected] [email protected] 2 To the attention of Minister Tõnis Lukas Ministry of Culture Brussels, 18.10.2019 Dear Minister Lukas, We are writing on behalf of EMMA (European Magazine Media Association), ENPA (European Newspaper Publishers’ Association), EPC (European Publishers’ Council), NME (News Media Europe), AIG (Advertising Information Group), AMC (Audience Measurement Coalition), FEDMA (Federation of European Direct and Interactive Marketing), AER (Association of European Radios), EGTA (European Group of Television Advertising), GESTE (Les editeurs de contenus et services en ligne) and SPIR (The Association for Internet Progress), which together represent a large array of interests inside the European digital media market in order to express our strongest concerns with regard to the latest Finnish Presidency text, published on 17 October 2019. The undersigned associations urge you not to agree to this text, which is far from being ready to be elevated to the political level, as there are many outstanding issues unresolved. The proposed drafts of the e-Privacy Regulation, including the latest text of the Finnish Presidency, would consolidate market dominance of the same handful of players, whose power it actually seeks to curtail. Our member companies are under extreme competitive pressure from a handful of dominant online platforms and this Regulation will have a detrimental impact on competition, innovation and to the consumers it seeks to protect. The e-Privacy Regulation in its current form creates new competition issues and will (indirectly) only benefit large log-in platforms. We believe that many Member States understand our concerns and have tried to mitigate the worst aspects of the proposal through various amendments. In spite of such efforts, the text remains unacceptable and would be a backward step in European objectives to protect media pluralism, diversity and the formation of opinions in Europe. This is because it puts the future financial viability of independent, advertising funded media at risk. We would like to highlight some of the many outstanding questions, in particular the question of conditionality of access to content. The majority of freely accessible journalistic editorial content is financed by advertising revenues. The use of suppliers (cookies) is essential to monetize the vast array of services which free and independent media across Europe provides. This is why it is essential that the EU legislators adopt a provision which clearly guarantees that access to an information society service can and should be made conditional on the user’s acceptance of cookies. Recital 20 fails to provide a solution and it forces media outlets to offer an equivalent offer without data processing, essentially asking publishers to offer their content for free. A potential obligation for service providers to provide a cookie-free option under the current wording of the recital would have far reaching effects in terms of media diversity and would lead to a (partial) expropriation of our intellectual property. In our view an obligation to offer an alternative service, e.g. one that is subject to direct monetary payment, can only be justified when the service holds a dominant market position (Recital 43 GDPR: "Imbalance of power") and is inappropriate for the media sector which is characterized by a diverse and plural offer to citizens We further note that the EU has cross-cutting fundamental rights obligations in the area of freedom of expression, which creates an obligation to consider the effect of regulatory measures on media pluralism as per Article 11 of the Charter of Fundamental Rights of the European Union. We would like to share with you some key findings of an expert opinion by the leading expert in European and data protection law, Prof Dr Joachim Kühling (University of Regensburg)1: - The report states that - contrary to what is often claimed but has never been substantiated - there is extensive margin for how and what can be regulated. The GDPR does not legally limit this margin with regards to the e-Privacy Regulation. In particular, it does not prevent the Regulation from deviating from GDPR, nor does it only allow for stricter regulations than those under GDPR. - The expert opinion examines the proposals on the question of admissibility and the limits of a conditional relationship between consent and service provision, as well as the system of the legal bases and the fact that the current draft provides no legal basis other than consent for the economic purposes of refinancing media services. It is clear that the proposals of the Commission, Council and the European Parliament are unacceptable under European law. Although Article 10 is deleted in the current Council text, we are genuinely concerned that Article 10 will be reintroduced under pressure from the Parliament and the owners of the dominant browser, without any safeguard in the Council text, that providers or software have to ensure that any consent requested by a website and given to the website is applied by the software immediately. Having regard to the extreme position enshrined in the European Parliament’s report and the weak safeguards contained in the Council’s text, we expect the trilogue to result in a text which - through Articles 8 to 10 - will solidify the data supremacy of the large US log-inplatforms. Indeed, Articles 8 to 10 entrust the design of the privacy user interface to market dominant platforms. This power over the consumer and their competitors will clearly lead to less control over privacy, not more. Moreover, such provisions will increase content providers’ dependency on large platforms and will incentivise the latter to close off their walled data gardens. As such, we urge the Council most strongly to take more time to carefully reflect on the various questions that remain unanswered: for example, the inflexible legal bases; the scope of application; the ambiguous relationship with GDPR; and its profound impact on competition in the digital market. 1 The English translation will be available and circulated shortly. Alternatively, Member States should request the European Commission to reassess the e-Privacy proposal in the light of the ongoing evolution of the GDPR, to reconsider its impact on competition, and to ideally repeal the proposal. Therefore, if you believe, as we do, that media diversity is a cornerstone of European democracy and a vital instrument for the formation of opinion in Europe, please do not proceed to an agreement on the current Presidency text. Yours sincerely, Ilias Konteas Ilias Konteas Angela Mills Wade Wout van Wijk EMMA ENPA EPC NME Ilias.konteas@magazinem [email protected] Angela.Mills- wout.vanwijk@newsmediaeur edia.eu [email protected] ope.eu Dr. Bernd Nauen Mathilde Fiquet Agata Nowacka Matt Payton AIG FEDMA AMC AER [email protected] [email protected] [email protected] [email protected] Amelie Delahaie Connor Murray Jana Břeská Geste EGTA SPIR [email protected] [email protected] [email protected]