EFAMRO / ESOMAR Position Statement on the Proposal for an ePrivacy Regulation — April 2017 EFAMRO/ESOMAR Position Statement on the Proposal for an ePrivacy Regulation April 2017 00. Table of contents P3 1. About EFAMRO and ESOMAR 2. Key recommendations P3 P4 3. Overview P5 4. Audience measurement research P7 5. Telephone and online research P10 6. GDPR framework for research purposes 7. List of proposed amendments P11 a. Recitals P11 b. Articles P13 2 EFAMRO/ESOMAR Position Statement on the Proposal for an ePrivacy Regulation April 2017 01. About EFAMRO and ESOMAR This position statement is submitted In particular our sector produces research on behalf of EFAMRO, the European outcomes that guide decisions of public authorities (e.g. the Eurobarometer), the non- Research Federation, and ESOMAR, profit sector including charities (e.g. political the World Association for Data, opinion polling), and business (e.g. satisfaction Research and Insights. In Europe, we surveys, product improvement research). represent the market, opinion and In a society increasingly driven by data, our profession ensures the application of appropriate social research and data analytics methodologies, rigour and provenance controls sectors, accounting for an annual thus safeguarding access to quality, relevant, turnover of €15.51 billion1. reliable, and aggregated data sets. These data sets lead to better decision making, inform targeted and cost-effective public policy, and 1 support economic development - leading to ESOMAR Global Market Research 2016 growth and jobs. 02. Key Recommendations We support the proposal for an ePrivacy Amendment of Article 8 and Recital 21 to enable Regulation to replace the ePrivacy Directive as research organisations that comply with Article this will help to create a level playing field in a true 89 of the General Data Protection Regulation European Digital Single Market whilst increasing (GDPR) to continue conducting independent the legal certainty for organisations operating in audience measurement research activities for different EU member states. However in order the benefit of the digital (media) economy; to ensure greater consistency and certainty the following changes should be made to the Creation of an exemption for analytics cookies proposal: used for research purposes that pose no consequential threat to the privacy of users; and Reduction of opportunities for individual jurisdictions to create divergent national requirements such as those foreseen in Article 16. 3 EFAMRO/ESOMAR Position Statement on the Proposal for an ePrivacy Regulation April 2017 03. Overview The current proposal for the ePrivacy Regulation We support the decision to propose transitioning will have a significant impact on the ability of the ePrivacy Directive to a Regulation and the research sector to conduct a wide variety of encourage legislators to secure maximal activities commissioned by our key stakeholders alignment of requirements between the GDPR, particularly for audience measurement research and the ePrivacy Regulation. We further welcome and social and opinion research conducted efforts to establish a level playing field across using electronic communication methods. These the whole of the European Digital Single Market research activities range from online audience by preventing the multiplication of opportunities measurement to opinion and social research for jurisdictions to create divergent requirements conducted by the telephone. It is important that through derogations and other legislative the legislative process does not unintentionally mechanisms. hinder or damage the ability of the sector to conduct statistical and scientific research in Europe. Nonetheless, the proposals currently contained in the draft ePrivacy Regulation raise a number of concerns for our sector, particularly: The distinction made between first-party and New measures proposed to curtail unsolicited third-party audience measurement as defined telephone contacts for marketing purposes as in Article 8: and defined in Article 16 - which may be interpreted so broadly as to prevent legitimate telephone- based research activities conducted by our members. 4 EFAMRO/ESOMAR Position Statement on the Proposal for an ePrivacy Regulation April 2017 04. Audience measurement research Article 8 and Recital 21 of the proposed ePrivacy Regulation acknowledge the importance of measuring web traffic to websites, but do not enable the ecosystem required to deliver true independent online audience measurement. High value placed on insights from independent audience measurement Website owners and content providers require helping to guide government decisions around precise and independently verified audience the frequency and licensing levy or amount of measurement in order to be able to both measure subsidy to be provided to a national broadcaster. the relevance and effectiveness of a variety of content and improve the web experience of users. Stakeholders, including governments, website owners, content providers and media platforms In today’s operating environment, audience use audience measurement research in order measurement is conducted for website owners to establish independent, verifiable measures and content providers through both first- and barometers to evaluate audience shares, party and first-party cookies and other similar traffic flows, and establish (globally) trustworthy functioning technologies. Many website owners currencies for the purchase and selling of online may lack the technical capacity and means advertising space. The number of independent to establish an effective first-party audience actors - separate from leading and known measurement and content providers only trust American brands – that are able to institute independently verified sources of measurement. and establish these measurements has steadily decreased, as this information has increasingly With a market, worth over EUR 115 billion in been concentrated with brands who are able to Europe alone2, accuracy is a key requirement leverage their first-party advantage. in combating fraud and assigning a realistic The proposed ePrivacy Regulation could, if valuation of web traffic and media investment. amended appropriately, be an important lever Independent audience measurement is a critical to diminish the risk of data and economic part in the functioning of the internet and is monopolies, foster trust and confidence in the crucial to facilitating a successful Digital Single market, and maintain the separation between Market. audience measurement research providers and As the digital economy grows, so does the other operators collecting for non-research transition from traditional to digital media. One purposes. example of this is the move by national TV stations to start broadcasting or simulcasting 2 on the internet. In many countries, audience Group M This Year Next Year 2016 Report measurement figures are a critical element in 5 EFAMRO/ESOMAR Position Statement on the Proposal for an ePrivacy Regulation April 2017 Our sector’s leading research organisations Similarly, the market, opinion, and social research have traditionally provided the independent sector increasingly needs to embrace the use of role of measuring and providing objective, new digital technologies and innovation to boost accurate media measurements for use by its ability to collect and use data as an integral media owners and content providers. These part of its service provision – and meet the measurements are used to set the value of evolving needs of research users who inhabit an content placement on platforms ensuring that increasingly digital world. each stakeholder is awarded a fair remuneration. Effective measurement for them often cannot be achieved exclusively using first-party audience measurement techniques and often need third- party input to achieve actionable precision. The ability to provide audience measurement would therefore be concentrated in the hands of the few leading and known American brands such as Google and Facebook who can offer first-party solutions in a way that an independent research organisation simply cannot hope to provide. Audience measurement has clear scientific and statistical research purposes It is important to underline that audience The second is aggregated traffic calibration measurement research is not an activity which sourced from general census data provided by precedes online behavioural advertising, it is a cookies or other similar functioning technologies research activity interested in understanding that is collected passively and subsequently and segmenting traffic flows in order to provide aggregated so as to present little or no privacy insight into the audiences being attracted to risk to the individuals measured. Using both of particular content using a series of research these data sets together increases the precision techniques to establish these measurements. of research as the panel data will provide richer research insights into the audience segments To achieve effective and independent media visiting the service providers, whilst the traffic measurements, researchers combine two calibration data will provide valuable insights into essential data sources: the first is the detailed the representativeness of the panel data that is behavioural personal data provided by data being used to provide the measurements to the subjects who have consented to participate in service user. research media measurement panels. 6 EFAMRO/ESOMAR Position Statement