When the European Parliament voted Thursday to move forward with negotiations around the ePrivacy Regulation, it dealt a bitter defeat to industry lobbyists who have been accused of running a "populist" campaign against the law.
According to the pleas of some lobbyists, the regulation holds Europeans hostage and will put Europe on a par with Zimbabwe in the free-media stakes. It will turn web browsers into "private gatekeepers" and hinder Europe's ability to move to 5G mobile connectivity.
"It's the death of the press, it's the death of all apps and free services online, it will be shutting down the internet, it is the end of the telcos, we will lose everything. This is really very radical lobbying with regard to the tone, and in my view it is completely over-exaggerated." — Jan Philipp Albrecht on lobbying over ePrivacy Regulation
Jan Philipp Albrecht, the German Green MEP who was largely responsible for steering the regulation's sister law, the EU General Data Protection Regulation — and who is a shadow rapporteur on ePrivacy — said industry lobbying over the new legislation has been unprecedented.
"In the GDPR context, yes, we had massive lobbying … but it was not really that I felt bad about it. I had to take many debates … but here it is an extreme, populistic lobbying," Albrecht told The Privacy Advisor. "It's the death of the press, it's the death of all apps and free services online, it will be shutting down the internet, it is the end of the telcos, we will lose everything. Also, to attack politicians [claiming] that they will shut down the media and press like fascists, because they fight for consumers and against tracking of consumers, shows there is a very extreme tone … This kind of lobbying is completely unreasonable."
That, of course, is not how industry lobbyists see things.
"On the substance, it's not insane," said Townsend Feehan, the CEO of online-advertising industry lobbyists IAB Europe. "There has been an irresponsible use of populist verbiage on all sides. [The subject matter] is technically quite complex and … we found it very hard to render what are quite technically complex ideas in intellectually honest and simple ways. Different stakeholders make more or less of an effort to do that. It's inherent in the nature of the subject."
Feehan said the amendments approved by the European Parliament last week "would make it impossible for you to decide on what terms a user can access your site," as site operators would not be able to keep people out who do not agree to their tracking terms. This would effectively deny them their property rights, she claimed.
IAB Europe has its own accusations of populism to lob around, with digital rights groups being the target. "Civil society will consistently evoke the threat of secret online tracking … The problem is that secret tracking online is certainly illegal and impossible if the provisions of the GDPR are implemented," she said. "Under the GDPR, you need to know who is processing your data and for what purpose. There is no phenomenon of secret tracking and yet there are references to secret tracking both in the text of ePrivacy and constantly in a lot of the rhetoric around it."
How much attention did MEPs give civil society in recent months? "We have mostly had a fair hearing in the EU institutions before the frenzy," said Joe McNamee, the executive director of digital rights group EDRi. "However, our voice is drowned out by a small number of big companies amplifying their voice through a multitude of trade associations and their increasingly outlandish claims about the end of the world being near. We can't debunk all of the lies all of the time."
The Corporate Europe Observatory, a group that fights for lobbying transparency, published a much-circulated report earlier this month on the ePrivacy frenzy. "It depends where your starting point is, but I think it's been a very concentrated lobbying campaign compared to many others," said Vicky Cann, who authored the article. "This attempt to reframe the debate and make it not about ePrivacy per se, but about the future of the media, has both irritated and fired up people depending on where they are on that issue."
Not all businesses have been fighting to water down the new regulation. One example of a company lobbying in favor of strong legislation was that of Qwant, a French search engine that's trying to establish itself as a pro-privacy alternative to Google.
Guillaume Champeau, Qwant's head of public relations, told The Privacy Advisor that the firm had found a few sympathetic ears in the European Parliament – though he wouldn't say whose. "One [MEP] was very encouraging, not because he or she was in need of a company that would take this position, but … that there was a company taking this point of view," he said. "The contact was very constructive, for sure."
Now, of course, the game moves to the "trialogue" negotiations between Parliament, Commission and Council. That means lobbying the governments of Member States. As Champeau put it: "It's still a long game. We'll wait for the end result to say if it was successful or not.
"Very big players like Google or Facebook have been publicly quite discreet on the subject, but there were other organizations, especially involved in online advertising, that were really [acting] in the interests of those companies," he added. "Sometimes the stakeholders you see advocating are not the ones pulling the strings."
One of the most prominent bodies representing the big U.S. tech players, including Google and Facebook, is the Computer & Communications Industry Association (CCIA). When, on October 23, The Privacy Advisor asked the CCIA's Brussels office for an interview on the subject of ePrivacy lobbying, Christian Borggreen, who heads the office, replied: "CCIA has not been very active on ePrivacy so perhaps better to talk with someone else, like IAB Europe."
Less than four hours later, CCIA Europe tweeted out an infographic claiming that, thanks to the ePrivacy Regulation, "advertising online will be impractical due to the rise of consent banners and pop ups."
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