Belgium watchdog reckons online advertisers should be data controllers under GDPR

Real-time bidding advertising tested by European authorities

Belgium's data protection authorities are set to make a ruling which could have far-reaching implications for the multibillion-euro online advertising market in Europe.

IAB Europe, an international digital marketing and advertising association, is the subject of complaints about its approach to sharing data on individuals' privacy preferences for the purposes of real-time bidding for website advertising.

The ruling is under consideration by the Belgian data protection authority (APD) and is set to result in a draft ruling that would be reviewed by data protection authorities across Europe.

The ruling could have an impact on the Transparency & Consent Framework (TCF), a "consent solution" designed to help online advertisers comply with the EU's General Data Protection Directive and ePrivacy Directive when processing personal data or accessing or storing information on a user's device, such as cookies, advertising identifiers, device identifiers and other tracking technologies.

In a statement, the IAB said APD was set to identify infringements of the GDPR in a draft ruling. "It will also find that those infringements should be capable of being remedied within six months following the issuing of the final ruling, in a process that would involve the APD overseeing the execution of an agreed action plan by IAB Europe," it said.

According to the IAB, the draft ruling says it should be a legal data controller for the "digital signals created on websites to capture data subjects' choices about the processing of their personal data for digital advertising, content and measurement" under the TCF. "The APD is understood to consider these signals to be personal data," it said.

It is also expected to find IAB Europe to be a joint controller for TC Strings in the specific context of OpenRTB, software commonly used in the online advertising industry to manage real-time bidding for web advertising.

"Based on guidance from other DPAs up to now and the fact that IAB Europe does not in any way process, own, or decide on the use of specific TC Strings, as well as relevant case law and its own interpretation of the GDPR, IAB Europe has not considered itself to be a data controller in the context of the TCF.

"Therefore, it has naturally not fulfilled certain obligations that accrue to data controllers under the Regulation. The draft ruling will require IAB Europe to work with the APD to ensure that these obligations are met going forward," the statement said.

The global market for advertising via real-time bidding could be worth as much as $27.2bn by 2024, growing at around 30 per cent each year, according to some estimates.

A report by the Irish Council for Civil Liberties said that Google's RTB system sends this data to 968 companies. It said that a data broker company that uses RTB data to profile people influenced the 2019 Polish Parliamentary Election by targeting LGBTQ+ people.

The report said Google's RTB system had been used to target 1,200 people in Ireland profiled for substance abuse, diabetes, and other health conditions.

IAB Europe said it was optimistic it could form an action plan under the APD's supervision that should enable the approval of the TCF as a GDPR transnational Code of Conduct (CoC) by the APD and the full European Data Protection Board (EDPB).

But that could be just one outcome of the case, said Neil Brown, director at tech-savvy virtual English law firm

"It's probably somewhere on a spectrum from the IAB needing to make a change to its framework and all the consent tools that are based on it changing slightly; through to some more transparency; through to more significant or wholesale changes to the way this kind of tracking and surveillance is done; right the way through to what I suspect a number of the complainants want, which is an end to this type of online tracking," he said. ®

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