Withdrawal of the ePrivacy Regulation: what regulation for online advertising?

The European Commission has announced that it will withdraw its proposed ePrivacy Regulation within the next six months.

Mélanie Defoort - Legal & Compliance / CSR Leader - Valiuz

The European Commission has announced that it will withdraw its ePrivacy Regulation proposal, which dated 10 January 2017, from its 2025 work programme within the next six months. This is both good and bad news.

The reasons given for withdrawing this proposal are: “No agreement foreseeable - no agreement is expected from the co-legislators. Furthermore, the proposal is outdated in light of some recent legislation, both in the technological and legislative landscape.”

This is firstly good news, because this text, which aimed to replace the framework established in 2002 by the ePrivacy Directive, crystallised divergences between Member States and the European institutions themselves, but also between players in digital advertising.

As an illustration, a key and much-criticized point of this text provided for the collection of a single consent for online advertising via browsers to increase the protection of individuals' privacy and combat "cookie fatigue." This is enough to put the entire advertising ecosystem on its back, given that the browser market is dominated by Google...

But the withdrawal of this text is also bad news, because while the institutions do not seem to have given up on amending the ePrivacy Directive with regard to its section relating to digital advertising, they do seem to have given up on legislating through hard law, which is nevertheless a guarantee of respect for democratic processes.

In recent years, we have seen multiple attempts to regulate the digital advertising sector using so-called "soft law" instruments, which are certainly more flexible, but whose restrictive nature is increasingly prevalent.

Thus, to overcome the blockage of the ePrivacy regulation, the European institutions and authorities have both carried out various studies and consultations (the “Cookie pledge” initiative which led to the publication of good practices in collecting consent; Digital Fairness Fitness Check, etc.), and published guidelines (EDPB Guidelines 2/2023 on the technical scope of Article 5 (3) of the ePrivacy Directive, EDPB Opinion 2/2024 on the “Pay or consent” model, etc.).

The culmination of this work was the announcement last October of the preparation of a "Digital Fairness Act" aimed at modernizing various consumer protection texts (Directive on Unfair Commercial Practices, Directive on Unfair Terms, Directive on Consumer Rights). This project, which is expected to be discussed as early as 2026, is intended to tackle, in particular, "dark patterns," addictive design, influencer marketing, and the targeting of vulnerable people.

While the effort made to adapt aging rules to a rapidly evolving market and meet the legitimate expectations of consumers must be welcomed, the risk posed by a pile-up of texts open to different interpretations between Member States is deplored.

The European Commission has prioritized simplification as its 2025 agenda. However, the future of online advertising regulation remains uncertain. It is crucial that the relevant institutions and authorities succeed in building a clear, stable, and harmonized framework that balances economic interests with the fundamental right to privacy, in order to avoid market fragmentation and unequal consumer protection.

About Valiuz :

Valiuz's mission is to accelerate retailers' transformation through data and AI to meet the challenges of new commercial codes. With our alliance of around twenty prestigious companies and unparalleled customer knowledge in France, we offer solutions and services entirely dedicated to retail. These solutions enable business teams to leverage their data and support their data-driven transformation to meet the strategic and operational challenges of competitive retail, adapted to new lifestyles and environmental issues.

In 2023, Valiuz launched its omnichannel and omnimarket Retail Media network, connecting brands with consumers during their online and in-store purchases. Our solutions include profiling, off-site, on-site, in-store activation, CRM, and related measurement. This solution allows advertisers to showcase their products and optimize their advertising investments. Our holistic approach to the customer journey offers a personalized shopping experience, strengthening the connection between brands, retailers, and their consumers.

Link to the JDN article