IAB Europe has taken note of last week’s decision by the Conseil d’État, France’s highest court for cases involving public administration, on whether the French Data Protection Authority, the CNIL, exceeded its statutory authority by adopting certain provisions in its Guidelines on cookies and other trackers last year. The legality of the Guidelines was challenged before the Conseil d’Etat by an interprofessional group of French associations (known as the “Interpro”), including IAB France.
The highest French court ruled the French DPA guidelines went beyond their remit by prohibiting cookie walls - a practice whereby website publishers may block access to internet users if they reject cookies. They pointed out the CNIL had “exceeded what it could legally do” by means of a soft law instrument such as the Guidelines. In all other respects, the court found that the CNIL had acted within its authority.
We note that the ruling is yet another reminder that the substantive issue of whether the EU’s General Data Protection Regulation (GDPR) actually grants users unlimited access to valuable online content and services at no cost in a way that would be anathema in the offline world, needs to be resolved in a way that aligns to fundamental notions that underpin our social market economies, including property rights.
We believe it was not the intention of the European legislator to deprive publishers of their rights to property or users of the prerogative to decide which services they pay for with money and which they wish to access in exchange for a willingness to see advertising, with all of the transparency and control that both the GDPR and the ePrivacy Directive afford them, especially when operationalised by means of tools such as IAB Europe’s Transparency and Consent Framework (TCF). A definition of valid consent that makes it impossible for publishers to incentivise users to grant consent (i.e. because users can just access content for free anyway) will simply eliminate advertising as an available revenue stream for digital media, diminishing the breadth and depth of the online content and services they can choose from and putting access to information behind a paywall.
Last week’s ruling is a reminder that there is still an opportunity to affirm a reasonable interpretation on an issue that is of critical importance for both companies and citizens. IAB Europe stands ready to engage with the CNIL, other DPAs, and indeed the European Commission and European Parliament to develop and codify such an interpretation.