Commercial consumer surveillance : online behavioural advertising in the light of developments in data privacy law and policy

Abstract

Commercial consumer surveillance is the monitoring and recording of internet users for commercial purposes, generally collected through cookies, which help recognise users and track their preferences. This data is later used for the practice of online behavioural advertising, which is problematic due to, inter alia, the inadequate control over personal data, manipulation and the risk of unfair discrimination, which ultimately results in the deprivation of individual autonomy. This issue is currently regulated in the European Union but there is an ongoing process of modernisation of the ePrivacy legislation. This is because despite privacy policies, very often consent is not effective at giving back to internet users control over their personal data. Therefore, it would be preferable to regulate the extent to which consumers are tracked online. The proposed ePrivacy Regulation provides for the protection of the confidentiality of communications of the use of new technologies. The changes that the reform would bring include its wider scope, technological neutrality, new rules on cookies, privacy settings, and consistent enforcement across Europe. Alternatives for online behavioural advertising and consumer surveillance in general can include contextual advertising, Privacy by Design or by Default or privacy-enhanced dashboard. Use of artificial intelligence methods can also be helpful in determining future trends. In this dissertation it is argued that a two-pronged approach is required. A regulatory framework should be created which fundamentally upholds and safeguards data protection and privacy interests of users, while also allowing a certain freedom to carry out business, in a manner which is fair to its users. This could be attained by using the law and technology to strengthen the tools that users have at their disposal to enforce their rights.