The Regulation of Targeted Behavioural Advertisement in the European Union

The paper is structured as follows: Section 2 introduces the concept of targeted behavioural advertising, the key entities involved therein and the tools used to track users along with an assessment of the users’ control over these tools. In this regard, it is asked whether users can actively opt out of being tracked or whether tracking is mandatory when using a given online service. Section 3 dissects the EU data protection framework regulating targeted behavioural advertising which is currently being reformed. The centre-piece of this analysis is the functioning of the informed consent requirement as well as the introduction of simplified notices and icons. Section 4 critically assesses the efficacy of notice and consent for targeted behavioural advertising. It first paints a picture of the individual and systemic problems users face, followed by an analysis of the tools introduced by the GDPR to improve informed consent. It draws on insights from empirical research, behavioural economics and semiotics to gauge the effectiveness of the proposed improvements to the notification system. Section 5 reflects on the usefulness of EU competition law to further data protection goals in the event that the data protection framework fails to provide an improvement. Section 6 concludes this article.