After Third Party Tracking: Regulating the Harms of Behavioural Advertising Through Consumer Data Protection

By Perry Keller (Dickson Poon School of Law)

This is the final report for the King’s College London ‘After Third Party Cookies – Consumer consent and data autonomy in the globalised AdTech industry’ research project, which was funded by the Information Commissioner’s Office (ICO) research grants programme. This study compares data protection based regulation of behavioural advertising (Adtech) across the four jurisdictions under discussion – the UK, EU, United States and China. This report was authored by Perry Keller, Reader in Media and Information Law, King’s College London with assistance from Dr. Li Yang and Dr Tom van Nuenen, Research Associates, King’s College London

In all four jurisdictions, behavioural advertising in the midst of major structural changes brought about by regulatory pressures as well as changes to operating systems, browsers and platform rules in relation to third party cross web and cross app tracking. Despite legal and policy context differences, consumer related data protection laws across the four jurisdictions all rely on notice and consent / choice frameworks as the basic mechanism for legitimising the sharing of personal data for advertising purposes. This key shared feature means that all four regulatory regimes face similar challenges in delivering genuinely informed and meaningful choice to consumers in complex digital environments, including behavioural advertising. These challenges are exceptionally important as new personalised services, devices and environments, many featuring integrated advertising, will operate on the basis of the basis of current legal and regulatory decisions regarding consumer choice and personalisation.

While consumer data protection in the United States and China operates in distinctively different legal and policy contexts, there are clear similarities with the UK and EU in their regulatory focus on repairing the conditions and mechanisms of notice and consent / choice (‘opt ins’ and ‘opt outs’). Across the four jurisdictions, data protection regulators are facing the increasing problem of consumer incapacities in complex digital environments, which is evident not only in the commercial exploitation of online notice and consent / choice interfaces, but also in regulatory interventions that implicitly recognise that genuinely informed, deliberative decision making for the average consumer in these environments has become increasingly unlikely.

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