Track(ing) changes: an examination of EU regulation of online behavioural advertising through a data protection lens

This article examines the proportionality, from a data protection perspective, of the regulatory regime applicable in the European Union to online behavioural advertising in light of recent amendments to the E-Privacy Directive. In this regard, first, the concept of behavioural advertising is explained. Secondly, the relevant legal framework is set out; particular attention is paid to the changes to the E-Privacy Directive that now mandate a user “opt-in” for targeted advertising. Thirdly, the harms to which behavioural advertising may give rise are outlined in order to facilitate the analysis of whether the recent changes constitute a proportionate response to these harms. It will be demonstrated that the European Union’s protective regime will come at a cost for internet users; however, it is in keeping with the now prominent position of the right to data protection in the European legal order.