I’m Alan Chapell. Over the past 20+ years, I’ve been outside privacy counsel to hundreds of digital media companies - and have brought over 40 of them to successful exits. I write a monthly syndicated report called The Chapell Regulatory Insider, and I’m also a regulatory analyst for The Monopoly Report.
The latest Monopoly Report podcast! This week, I welcome Andy Dale. We talk about the value of a redefined version of industry self-reg where the industry associations are more collaborative. #Imagine.
Some advice for the poor souls who participate in a “kill the cookie banner” multi-stakeholder process.
Author’s note: My son was born this week. Baby and mom are doing great. But I’m literally typing this from the hospital room with hospital staff entering every 30 seconds, which means neither of us can sleep anyway. So…
I’m certainly no fan of the cookie banner, and I have been on record for a long time that European regulators and policymakers are over-reliant on consent. Seems like every privacy problem impacting the ads space in Europe has a single solution, and its name is consent.
Recently, a number of civil society organizations across Europe have banded together to create KillTheCookieBanner.eu, an initiative designed to support the EU Digital Omnibus’ idea of moving away from cookie banners and toward a single-choice mechanism that resides in the browser. (i.e., the Global Privacy Control). The group is claiming that the EU Commission had all but decided to adopt GPC under the Digital Omnibus GDPR reform process, and that Google and “the ad industry” had thrown a wrench in the process. In response, the group is encouraging an old-school letter-writing campaign to put pressure on EU politicians to push these reforms forward.
Is Google to blame for this? Typically, I find my answer to this type of question an unmitigated YES!
But in this case, I believe that there’s a lot more nuance. I don’t think one can solve the cookie banner problem in Europe simply by having the EU adopt the Global Privacy Control, as some are suggesting. And I don’t believe the Commission’s Digital Omnibus approach to cookies as currently construed is viable. I explain why on the podcast here and here.
A Little Bit of History Repeating
It seems like there’s some momentum toward the creation of a multi-stakeholder process to address the EU cookie consent problem. On one hand, that’s encouraging news. Nobody, and I mean nobody, wants to continue living in this consent hell.
However, we’ve been down this road before. As of today, I don’t know who will take part in this process. So let’s view this as an open letter to that group from someone who has lived through what you’re about to live through.
There are inherent challenges to solving “the cookie consent” problem in Europe. And unless the group wants to spend the next few years meandering toward the Open Internet’s version of Waterloo, the group would be be well served to keep the following in mind:
Opt-in ≠ Opt-out: GPC signals are best for recording opt-out choice, while EU data protection law is an opt-in regime for cookies and profiling. That’s not a trivial distinction. If you want consent to be specific and informed as required under EU data protection law, you simply can’t have a single setting covering every website that one might visit.
Browsers ≠ Unbiased: Putting these controls in the browser (all of which have competing business interests) requires one to include rules designed to avoid browsers from preferencing their own offerings. Otherwise, you’re at risk of violating EU competition law.
Desktop ≠ the Internet: Whatever standard gets created needs to include CTV and mobile O/S platforms as well.
Discourse ≠ Rock-Fight: In any multi-stakeholder process, the various constituencies need to be transparent about their goals and defined success criteria for this effort. If one part of the room wants to end any form of tracking because it believes tracking is illegal under EU law (it isn’t) while the other half is trying to create loopholes, it seems unlikely that the group will reach consensus. To be clear, I believe that both positions are inappropriate. But those two voices are often the loudest in the room.
Finish What You Start: What seems to happen with these multi-stakeholder processes is that the group gets 90% of the way there and then someone (usually a politician) declares victory via a press release. The first 90-95% of progress is relatively easy. It’s during the last mile that these types of initiatives often die.
Listen to Publishers: The idea that publishers aren’t smart enough to determine the tools they want — and that any form of tracking is against the interests of publishers — is a form of paternalism. Keep in mind: Publishers aren’t competing with newspapers circa 1990. Rather, they are competing with 2026 walled gardens for ad dollars. If they tell you they need third-party tools to give them a chance to compete, those views and the evidence suggesting that publishers are acting rationally should not be so quickly dismissed. Exempting publishers from consent requirements isn’t super helpful if they can’t use those tools.
Be Wary of Further Empowering Big Tech: If this group does nothing else, I hope it keeps the following in mind as it looks to create rules: The past decade has brought a significant worldwide wave of privacy and data protection laws to the ads space. During that time, we’ve seen Big Tech reach the point where it is often “too big to regulate.” This is not a coincidence. I implore this group to avoid throwing Little Tech to the wolves under the illusion that this will somehow make it easier to come after Big Tech.
That said, I wish this group all the success in the world. If you can accomplish this, you’ll not only be heroes — you’ll make the world a better place.
I can only hope that you won’t let the search for the perfect get in the way of making incremental progress.
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If there’s an area that you want to see covered on these pages, if you agree or disagree with something I’ve written, if you want to tell me you dig my music, or if you just want to yell at me, please reach out to me on LinkedIn or in the comments below.
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