On February 4, 2020, the United Kingdom’s Centre for Data Ethics and Innovation (“DEI”) published its final report on “online targeting” (the “Report”), examining practices used to monitor a person’s online behaviour and subsequently customize their experience. In October 2018, the UK government appointed the DEI, an expert committee that advises the UK government on how to maximize the benefits of new technologies, to explore how data is used in shaping peoples’ online experiences. The Report sets out its findings and recommendations.

The Report describes common online targeting practices, and examines whether and how the regulatory landscape needs to change to address potential harms associated with online targeting, while recognizing that such targeting can be beneficial. Ultimately, the DEI does not propose imposing specific restrictions on online targeting, but states that an independent regulator should be appointed to focus on improving (i) accountability, (ii) transparency, and (iii) user empowerment as it relates to online targeting practices. In these areas, the Report highlights that companies are falling short of the standards for the ethical use of technology set out in the OECD’s human-centred principles on AI (to which the UK has subscribed).

More generally, the DEI considers that the regulator of “online harms” in the UK (the “Regulator”) should supervise online targeting. Although the Report acknowledges that the UK Information Commissioner’s Office (“ICO”) and Competition and Markets Authority (“CMA”) have played a role in supervising online targeting to date, it notes that their respective areas of competence (data protection and competition law respectively) may not be sufficient to address all possible harms arising from online targeting. A regulator with a broader remit is required, although the Report emphasizes that the Regulator should collaborate with other regulators through formal coordination mechanisms.

The Report concludes by making recommendations in three principal areas:

Accountability

  • The Regulator should focus on online targeting systems and should prepare a code of practice incorporating standards for those systems, and require online platforms to assess and explain the impact of their systems.
  • The Regulator should have the power to compel the production of information from companies.
  • Oversight of online targeting should cover all types of content (including, but not limited to, advertising), and the Regulator should have a duty to protect freedom of expression and privacy.
  • UK government should develop a code on online targeting in the public sector to promote “safe, trustworthy innovation in the delivery of personalised advice and support”.

Transparency

  • The Regulator should be able to force companies to give independent experts access to their data to audit systems, and to conduct research with potential significance for public policy.
  • Platforms should be required to host publicly-accessible archives of online political ads, “opportunity” ads (e.g., ads for jobs, credit and housing), and ads for age-restricted products.
  • UK government should consider formal mechanisms for collaboration with platforms to tackle “coordinated inauthentic behaviour”.

User Empowerment

  • The Regulator’s approach should encourage platforms to provide people with greater information and control over online targeting. The DEI supports the CMA’s proposal for a duty of “fairness by design” on online platforms (which complements the duty of “data protection by design” under Art. 25 GDPR).
  • The Regulator and other authorities should increase coordination of their digital literacy campaigns.
  • The DEI supports the UK government’s plans for to ensure online electoral adverts are labelled to identify paid-for and targeted content (which will be complemented by the ICO’s forthcoming code of practice on the use of personal data in political campaigning).
  • The Report also supports assistance for emerging “data intermediaries” (i.e., entities mandated by users to interact with digital services, providing centralized consent management and authentication services, possibly with fiduciary duties).

It remains to be seen whether the UK government will implement these recommendations — they may form part of the final online harms package when it is completed. The team at Covington will continue to monitor developments in this area.