Digital Omnibus : Who controls consent?

The Article 88b problem

While Article 88a focuses on measurement, Article 88b shifts the debate to control by proposing a new way for users to express their privacy preferences.

The proposal would allow users to express privacy preferences through automated and machine-readable signals, potentially managed through browsers or similar technologies. The objective is understandable. Rather than making users answer the same consent question on thousands of websites, preferences could be managed more efficiently through a central mechanism. Yet this apparent simplification introduces a fundamental question: Who controls these mechanisms?

If browsers become the primary interface through which consent decisions are made, browser providers (Apple, Google, Microsoft, …) could gain significant influence over the digital advertising ecosystem. Some stakeholders worry this would create a new layer of gatekeeping, at a time when Europe is actively trying to reduce gatekeeper power through legislation such as the Digital Markets Act.

There is also a more practical concern. Privacy decisions are highly contextual. Consumers may make different choices when interacting with a trusted e-retailer, news publisher or financial institution. A single browser-level setting may not always reflect those nuances.

Finding the right balance between privacy and advertising

The debate is often framed as a choice between privacy and advertising. That is a false choice.

The advertising and media industries broadly support stronger privacy protections and recognise the need to reduce consent fatigue. The challenge is however to achieve these objectives without undermining the mechanisms that provide transparency, accountability and competition in digital markets.

This is why any future machine-readable consent framework should be designed in a way that preserves user choice, avoids creating new gatekeepers and reflects the contextual nature of privacy decisions.

Working together for a balanced digital ecosystem

A constructive solution will only be possible if policymakers build on the expertise that already exists within the industry. Across Europe, organisations such as the World Federation of Advertisers (WFA), national advertiser associations such as the United Brands Association (UBA), the Audience Measurement Coalition (AMC) and Joint Industry Committees (JICs) including the Center for Information about Media (CIM) in Belgium, work every day to ensure that advertising markets remain transparent, accountable and competitive.

These organisations bring together advertisers, agencies, media and measurement experts, with deep experience in balancing innovation, privacy, audience measurement and market transparency. Rather than opposing reform, they work with EU institutions, data protection authorities and media regulators to shape practical solutions.

Their shared objective is clear: to ensure that Europe's digital framework protects consumers' privacy while preserving independent audience measurement, supporting media pluralism, fostering innovation and maintaining a level playing field for all market participants. By coordinating at European level, these organisations help ensure that advertisers, media companies, agencies and consumers are properly represented in the policy debate.

Encouraging progress, but the debate is far from over

There is good news. The coordinated efforts of industry organisations have already contributed to several positive developments in the Council's negotiating position on the Digital Omnibus.

One major concern was the proposed centralised consent mechanism under Article 88b. Following extensive feedback from industry stakeholders, there are strong indications that this provision may be removed from the text. This would reduce the risk of concentrating excessive power in the hands of browser providers and other digital gatekeepers and helping preserve the direct relationship between consumers and the services they use.

Another positive development concerns audience measurement. Earlier drafts limited the exemption to processing carried out “solely for their own use”. Industry organisations consistently explained that this wording did not reflect the reality of independent audience measurement. Its removal from the Council text is therefore an important step forward and provides greater legal certainty for independent audience measurement.

Finally, Recital 44 has been revised to better distinguish independent audience measurement from proprietary web analytics and internal publisher analytics. This is an important clarification. However, AMC notes that the latest text of Recital 44b would still require data to be “instantly anonymised” and prohibit combining data from different services.

These safeguards, while well-intended, would make independent audience measurement technically unreliable because accurate metrics require limited temporary processing and secure data combination before anonymous aggregate results can be produced.

The journey is far from over

These developments demonstrate both the value of constructive dialogue between policymakers and industry stakeholders and the complexity of finding the right balance between privacy protection and a well-functioning digital ecosystem. The changes described above only reflect the current negotiating position of the Council of the European Union. The European Parliament still needs to develop its own position, after which the Parliament, the Council and the European Commission will enter into negotiations to reach a final compromise. This process is likely to take many months and could result in further substantial changes to the text.

For that reason, it remains too early to determine what the final Digital Omnibus Regulation will look like or to assess its ultimate impact on advertisers, media companies, agencies and consumers.

The Digital Omnibus may have started as a technical simplification exercise, but it has become a defining debate about the future of Europe's digital economy. The challenge is no longer simply how to protect privacy. It is how to protect privacy while maintaining the independent measurement systems that underpin trust, transparency and accountability across Europe's media ecosystem.