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Consent in marketing – a new industry standard?
Consent in marketing – a new industry standard?
It is undeniable that privacy regulations are here to stay and have a massive impact on how brands are able to communicate with consumers. This is not a bad thing, but it does require not only legal departments but also marketing teams to keep up to date on platform changes due to the regulatory updates. This year we have seen a lot of movement both in the courts and by the Regulators around lawful basis, and subsequent amendments to some of the major tech companies’ platforms.
The Year of Consent
Legislative Changes
One substantial change that might have gone unnoticed until recently is the Digital Markets Act (the “DMA”) . It came into effect May 2023, with the purpose to secure a fair market for all digital companies as well as increased user control over personal data. It is applicable to companies that fulfill the criteria of a so-called Gatekeeper.
This September, six big tech companies were designated as Gatekeepers, meaning that they have an impactful size and control how businesses reach the end user of the platform. From September, the Gatekeepers have six months to ensure that they comply with the DMA. The gatekeepers are Alphabet (Google), Apple, Amazon, ByteDance (TikTok), Meta and Microsoft. We are expecting these platforms and their 22 core services to change in response to the regulatory requirements set by the DMA, as the regulation sets expectations also on how personal data is collected and used.
Ad Tech in the News
Google announced on Sep 6thwe will be seeing changes in their platforms in order for Google to comply with their new status as Gatekeeper. The changes that we have seen from Google so far included (A) updates made in regards to consent from advertisers’ end users; and (B) Google has stated Consent mode will be required for personalized advertising from March 2024. As Google so often says, the future will be consented.
Meta released the news about their new subscription model on Oct 30th, which will enable users to either (A) continue using the service as is for no fee, in effect consenting to the use of their data for behavioral advertising, or (B) pay a monthly fee to use the service ad free – and without their data being used for behavioral advertising. This subscription model is intended to cater for both the lawfulness of processing of personal data under the GDPR as well as compliance with the DMA. Meta has, through several judgments in 2023, been criticized for their use first of contractual obligation and their subsequent switch to legitimate interest as legal basis for behavioral based advertising. In early November the EDPB released a statement requiring the Irish DPC to enforce an EU wide ban Meta against carrying out behavioral advertising on its platforms without the consent of users. Meta announced its move to a subscription model in parallel to this ban being announced. In effect we are looking at a new industry standard for lawful behavioral advertising, where consent currently seems to be the only option.
In the Netherlands, Criteo was recently fined for “failing to obtain a website user’s consent to the processing of his personal data collected by placing so-called ‘tracking’ cookies on the user’s device via third-party online publishers it partnered with” – consent is obviously king.
What does this mean for advertisers
Google has set the cut off for advertisers to implement Consent Mode to preserve online audiences as March 2024. This is a fairly tight timeline for companies who have not yet started or completed the implementation. Some companies are still finalizing their GA4 migrations which is a prerequisite for Consent Mode. At this point in time, there are still unknowns, such as whether there will be implications for other GMP integrations.
At this moment in time, Meta is beginning to base their data collection on consent; the infamous “pay or ok” wall prompted to EU/EEA users as of the beginning of November 2023 (ie through the subscription model described above). If this version of consent is considered valid according to the GDPR and by the EU Regulators, we do not yet know, but are closely monitoring the development.
While we wait to learn more about what these consent updates across the EU look like in full, and whether they satisfy the regulators, we recommend advertisers:
- Map your advertising activities, (personal) data flows, and controllership status in relation to Meta, and any other platform that you may be utilising for marketing purposes.
- Secure your CMP (Consent Management Platform) solution is up to date and that you have control over your user consent flows.
- If your company is using Google advertising platforms and services; implement Consent Mode or update your current consent mode implementation.
- Advertisers using offline customer data will need to make updates to the Google Ads API in regard to consent for advertisings using Customer Match
- Ensure your organization is ready to respond to regulatory or technical changes and to maintain your organization's data protection criteria.
To summarize; regulatory changes is and will continue to impact the media and marketing landscape. As a result, marketers need stay informed in order to navigate this space, and it is too important not to act upon immediately.
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For further information, contact:
Suvi Panas
Data Protection Manager & Consumer Data Activation Lead
+46 (0) 768 962 842
