Amazon's court case against mandated advertising transparency and more
This week, instead of a single longer note, I experiment with a selection of shorter comments on recent developments in EU tech law & policy. I’m not aiming to respond comprehensively to the news; I’ll only comment if I have something to say.
Amazon against the DSA ad database duty: The new Digital Services Act (DSA) includes a duty for very large online platforms (VLOPs) to “compile and make publicly available an advertisement repository.” Amazon challenged this duty before the EU’s General Court, which made a preliminary decision to temporarily suspend the application of that duty to Amazon.
The duty challenged by Amazon has been puzzling me since it was just a proposal because I can’t see how it could possibly be proportionate (see my comments here and here). On one hand, there is clear and significant harm to the businesses whose advertising strategies are made public (also through public APIs). On the other hand, the stated policy goals can be satisfied with much more limited disclosure. As Amazon argues - disclosure to regulators and DSA’s “vetted researchers” - would be sufficient. Of course, the courts may end up disagreeing with me (and Amazon). We should not read too much into the fact that Amazon won a temporary suspension.
I recommend my conversation with Eric Seufert on likely business effects of mandated ad transparency under the DSA:
Mikolaj Barczentewicz: (…) I’m curious what you think about Article 39 [DSA], on additional online advertising transparency, where we’ll have those compulsory open databases of information about advertising, where you’ll have content of the advertisement, who paid for it and all the targeting criteria. (…)
If it’s a tool available through APIs, then I think the idea was that this is going to be used by researchers, but my first intuition was that this is going to be used primarily by the industry. So you will probably very quickly have products that tell you what your competition is doing, if you’re an ad agency or if you’re just a client. I can imagine those products being developed very quickly. I wonder if you think this will have any impact?
Eric Seufert: You’re right. (…) I think the use case is intended for researchers and regulators, but I think the primary consumers will be the operators, and I think that’s demonstrably true now because Facebook has the Facebook Ad Library.
It doesn’t provide a whole lot of data. What it’s primarily used for now is just looking at what ad creatives your competitors are running. The problem with it is that it reduced the time to ubiquity. If I have an ad, and I’ve been running it for a while, by proxy, that’s a signal that it’s a performing ad. As soon as that is the case, all my competitors will copy it, pixel for pixel almost. That’s one downside. I think the upside is much more substantial. It’s just having a lot of transparency in what ads are being run.
But no, you’re totally right. The API will be ingested by probably tools that companies subscribe to, to just get instant alerts of when their competitors are running ads, and then all the new data that is mandated to be made available as well. Because with Facebook Ads Library, you get to see spend levels, but you don’t get to see spend amount and stuff like that. You have to make a lot of assumptions about how much money has been spent on these ads.
Mikolaj Barczentewicz: But we don’t have spend amounts here. We have numbers of some basic stats, the number of users reached, and aggregate numbers broken down by your member states (…)
Eric Seufert: Yes. The view counts are also bucketed on Facebook now, so you don’t get to know exact view counts. That could be used as a proxy for spend, right?
For a more technical legal comment on the court decision (also covering the other aspect in this case, the “obligation to provide users with an option for each of its recommender systems which is not based on profiling”), see Mateusz Kupiec on the Kluwer Competition Law Blog.
French cloud company OVH keeps demanding EU protectionism: The CEO of OVHcloud gave an entirely predictable interview to Euractiv, saying that EU regulators lack “courage” to formally designate cloud services as “gatekeepers” under the Digital Markets Act. He also complained about the EU-US deal on transatlantic flows of personal data, expressing a conviction that the EU Court of Justice will invalidate it. Nothing new here, but it’s always an opportunity to remember that “the perils of putting ‘all one’s data eggs’ in one basket (one locale, one data center) were amply illustrated when a fire in a data center of a French cloud provider, OVH, famously brought down millions of websites that were only hosted there.”
Thierry Breton vs (as?) Elon Musk: A month ago, Commissioner Breton tweeted a letter to Elon Musk, complaining about disinformation on Musk’s platform (for the record: I don’t deny it’s a problem). Access Now and a number of other organizations responded to Breton, pointing out that his letter contains “misleading information” (my label, borrowed from Breton’s letter) about the DSA and that his ill-judged intervention undermines actual law enforcement.
eIDAS and e-back doors: There is little to add following all the civil society voices (see Mozilla’s last-chance-for-eidas.org). The EU institutions are wrong on this.
 As the judge noted, this will
enable third parties to access significant trade secrets concerning the advertising strategies of the applicant’s advertising customers. It reveals strategic information such as campaign duration, campaign reach and targeting parameters. By doing so, it will allow competitors and the applicant’s advertising partners to draw market insights on an ongoing basis, to the detriment of the applicant and its advertising partners.
 Yes, yes. Posted (X’d?) on “X, formerly known as Twitter.”