European Broadcaster Exchange (EBX)
Summary of concerns – draft ePrivacy Regulation
1. The members of EBX represent major broadcasters in Germany (ProSiebenSat.1), Italy and Spain (Mediaset),
France (TF1) and the UK (Channel 4). EBX members provide free universally available services that are of
huge importance for democratic societies. Public service broadcasters and commercial broadcasters play a
key role in Europe’s democratic and cultural life through: the provision of impartial news and information to
citizens; investment in the creation of high quality original European content; enabling pluralistic and
minority views to get air time; and ensuring that events of national and international significance are
universally available on a free to air basis.
2. Funding from advertising is critical to both public service broadcasters and commercial broadcasters to fulfil
their public service remit and regulatory obligations, including financing investment in a diverse range of
high-quality European originated content.
3. Marketing campaigns are increasingly signed globally and EBX provides greater choice to brands to advertise
Europe-wide which is currently dominated by the digital giants Google and Facebook. We believe EBX will
enhance competition in the digital advertising market.
4. As set out in the current Council draft, the direct marketing provisions appear to cover any advertising sent
by broadcasters to a user that can be identified. This would include the pre-roll and mid-roll advertisements
shown around VOD programming on any device (whether or not targeted) and advertisements broadcast in
the linear live broadcast if viewed through OTT (for example on a smart TV), since those users are also
“identifiable”.
5. Recital 32 states non-exclusively that “an identified or identifiable end-user is the user that has logged in
with a private account or personal log-in”. The two terms “identified or identifiable” are obviously borrowed
from data protection law, and are now defined in Article 4(1) of the GDPR. Further, based on EU data
protection case law (Breyer) any viewer/user is identifiable where transmission is via the internet because
the user’s IP address is known. In fact, whether or not a user is logged in, significant amounts - if not the
same amount of information can be obtained about non-logged in users for profiling purposes, so the
purpose of the distinction is unclear.
6. Therefore, any advertising, whether or not targeted, sent to a viewer of the broadcasters’ programming,
whether or not logged in, and including linear broadcasting shown OTT, would be direct marketing and
therefore requiring consent. This is a significant extension of the old law, which covered unsolicited
communications sent via interpersonal communications services whereby the message was stored in the
recipient’s device until collected.
7. If consent to showing advertising is not provided, the current draft Regulation does not explicitly allow you
to withhold a service. It therefore appears that an ad-free service would need to be provided. If this is the
intention of the legislators, this would undermine the EBX broadcasters’ entire business model and will have
a huge impact on all broadcasters’ ability to fund original European content and cultural diversity throughout
Europe. One further implication of this approach is that businesses that have already chosen a paid
subscription model rather than an advertiser-funded model would be given an unfair advantage.
8. We would be grateful for clarification in the draft regarding whether the withholding of consent to direct
marketing would enable broadcasters to require users to sign up to a paid-for service instead, or whether we
would have to provide an ad-free service.
9. It should not be that under the pretext of wanting digital giants to obtain consent from their users in relation
to advertising shown to them, for example in their social media accounts, that all advertising shown by
broadcasters who exercise editorial control over their content, should be considered to be providing direct
marketing. This will totally jeopardise the entire free-to-air TV and on-demand services advertising market.
10. Even if consent were required only for targeted advertising (which is not the position in the current draft as
we understand it, nor under GDPR where legitimate interests can often be relied upon for targeted
advertising), the ability of broadcasters to obtain consent is not equal to that of the digital giants, who have
virtual monopolies and the market power to secure consent. There is significantly more consumer choice in
relation to broadcaster platforms and we estimate only circa 10% at the most would consent to being shown
advertising. The impact of this would be to decimate our ability to sell advertising on our platforms,
resulting in massive damage to our revenue streams and our ability to create and show European content.
11. Furthermore, targeted advertising on broadcaster platforms is not as privacy intrusive as communications
sent via an interpersonal communication service or those provided by social media networks such as
Facebook. This type of advertising is not being delivered to their personal messaging service, nor is it stored
waiting for them to retrieve it. Viewers are accustomed to seeing advertising in VOD services and prefer to
see advertising relevant and of interest to them and their locality.
12. The collection and processing of personal data about viewers for profiling purposes is already strictly
regulated by GDPR and the ePrivacy provisions relating to cookies and the consent requirements that exist
around the interference with users’ devices. In addition, broadcasting services must already comply with a
variety of regulatory obligations, from the newly adopted AVMS Directive to the GDPR, which already
provide users with the necessary safeguards off-line as well as online. Funding from advertising is critical to
both public service broadcasters and commercial broadcasters to fulfil their public service remit and
regulatory obligations, including financing investment in a diverse range of high-quality original European
content. As any user of the Internet is identifiable by its IP address, linear broadcasting services and video
on demand services transmitted over the Internet must be explicitly excluded from the definition of direct
marketing communication, otherwise broadcasters would have to seek prior consent for broadcasting
marketing communications (television commercials, advertising spots), which cannot be intended by the
European Union.
13. We therefore request clarification in Article 4(f) of the draft Regulation that advertising sent as part of a
linear broadcasting service or video on demand service is not considered to be a “direct marketing
communication”. In the alternative, we request an amendment to Recital 32 to make clear that the direct
marketing provisions to not apply to users of broadcasting services and video on demand services.
Presidency revised text of the ePrivacy proposal 22
EBX amendment proposal
February 2019 (OR. en) 6771/19
Article 4 – Definitions - Direct marketing
Article 4 – Definitions - Direct marketing
communications
communications
(f) ‘direct marketing communications’ means any
(f) ‘direct marketing communications’ means any
form of advertising, whether written or oral, sent to
form of advertising, whether written or oral, sent to
one or more identified or identifiable end-users of
one or more identified or identifiable end-users of
electronic communications services, including the
electronic communications services
(but excluding
placing of voice-to-voice calls, the use of automated
end users of broadcasting services and video on
calling and communication systems with or without
demand services), including the placing of voice-to-
human interaction, electronic mail message, SMS,
voice calls, the use of automated calling and
etc.;
communication systems with or without human
interaction, electronic mail message, SMS, etc.,
(32) In this Regulation, direct marketing
(32) In this Regulation, direct marketing
communications refers to any form of advertising by
communications refers to any form of advertising by
which a natural or legal person sends
or presents
which a natural or legal person sends direct marketing
direct marketing communications directly to one or
communications directly to one or more identified or
more identified or identifiable end-users using
identifiable end-users using electronic communications
electronic communications services.
The provisions
services. The provisions on direct marketing
on direct marketing communications do not apply to
communications do not apply
with regard to users of
any other form of marketing, e.g. displaying
broadcasting and video on demand services and to any
advertising to the general public on a website which
other form of marketing, e.g. displaying advertising to
is not directed to any specific identified or
the general public on a website which is not directed to
identifiable end-user and do not require any contact
any specific identified or identifiable end-user and do
details about the end-user. An identified or
not require any contact details about the end-user. An
identifiable end-user is the user that has logged in
identified or identifiable end-user is the user that has
with a private account or personal log-in. In addition
logged in with a private account or personal log-in. In
to the offering of products and services for
addition to the offering of products and services for
commercial purposes,
Member States may decide
commercial purposes, Member States may decide
that this should
direct marketing communications
that direct marketing communications may include
also may include messages sent by political parties
messages sent by political parties that contact natural
that contact natural persons via electronic
persons via electronic communications services in order
communications services in order to promote their
to promote their parties. The same applies to messages
parties. The same should appl
ies to messages sent by
sent by other non-profit organisations to support the
other non-profit organisations to support the
purposes of the organisation.
purposes of the organisation.
(34) When end-users who are natural persons have
(34)
Making access to the website content provided
provided their consent to receiving unsolicited
without direct monetary payment condition on the
direct marketing communications for direct
consent of the end-user to the acceptance of direct
marketing purposes, they should still be able to
marketing would not normally be considered
withdraw their consent at any time in an easy
disproportionate in particular if the end-user is able
manner and without any cost to them. To facilitate
to choose been an offer that includes consenting to
effective enforcement of Union rules on unsolicited
the receipt of direct marketing on the one hand, and
messages for direct marketing communications, it is
an equivalent paid-for offer by the same provider
necessary to prohibit the masking of the identity
that does not involve consenting to the receipt of
and the use of false identities, false return
direct marketing on the other. When end-users who
addresses or numbers while sending or presenting
are natural persons have provided their consent to
unsolicited commercial direct marketing
receiving unsolicited direct marketing
communications for direct marketing purposes.
communications for direct marketing purposes, they
Unsolicited Direct marketing communications
should still be able to withdraw their consent at any
should therefore be clearly recognizable as such and
time in an easy manner and without any cost to them.
should indicate the identity of the legal or the
To facilitate effective enforcement of Union rules on
natural person transmitting sending or presenting
unsolicited messages for direct marketing
the communication or on behalf of whom the
communications, it is necessary to prohibit the
communication is transmitted sent or presented
masking of the identity and the use of false identities,
and provide the necessary information for recipients
false return addresses or numbers while sending or
end-users who are natural persons to exercise their
presenting unsolicited commercial direct marketing
right to oppose withdraw their consent to receiving
communications for direct marketing purposes.
further written and/or oral marketing messages
Unsolicited Direct marketing communications should
direct marketing communications, such as valid
therefore be clearly recognizable as such and should
contact details (e.g. link, e-mail address) which can
indicate the identity of the legal or the natural person
be easily used by end-users who are natural persons
transmitting sending or presenting the
to withdraw their consent free of charge.
communication or on behalf of whom the
communication is transmitted sent or presented and
provide the necessary information for recipients end-
users who are natural persons to exercise their right
to oppose withdraw their consent to receiving further
written and/or oral marketing messages direct
marketing communications, such as valid contact
details (e.g. link, e-mail address) which can be easily
used by end-users who are natural persons to
withdraw their consent free of charge.