IAB Europe to appeal Belgian Data Protection Authoritys TCF ruling

IAB Europe has confirmed that it will appeal the Belgian Data Protection Authority (APD)’s administrative ruling regarding IAB Europe and the Transparency & Consent Framework (TCF) to the Belgian Market Court. 

The administrative ruling’s finding that IAB Europe acts as a joint controller for profiling and other data processing done by TCF vendors in the context of OpenRTB is disputed by IAB Europe.

“IAB Europe is a small trade association that has been creating and iterating on a framework for data protection best practices in continual consultation with the authorities,” said IAB Europe CEO, Townsend Feehan. “It cannot have been the intention of the European legislator that a body like ours should bear legal responsibility for the data processing activities of an entire industry. We have no choice but to appeal.

“We believe the controversial ruling that IAB Europe is a data controller for information processed for TCF purposes is based on a misunderstanding of the facts and a misapplication of the law. This establishes an irrational legal precedent. It will have the perverse effect of discouraging other standard-setting organisations from investing in instruments that aim to protect users and facilitate the exercise of their rights under the GDPR.”  

IAB Europe believes appealing is the right decision to avert unintended negative consequences that go well beyond the changes that the APD wants to see made to the TCF, and which could impact the wider digital advertising industry. Notwithstanding, IAB Europe said it looks forward to working with the APD and other data protection authorities to ensure the TCF’s continuing utility in the market, and with the ultimate aim of having the TCF approved as a transnational GDPR Code of Conduct.

In announcing the appeal, IAB Europe notes that supervisory authorities from across the European Union were involved in the process that led to the APD’s administrative ruling. It said that while it believes it is unlikely that these authorities will take measures against IAB Europe or any commercial actors using the TCF until a final judicial ruling is rendered, it nevertheless calls upon such authorities, “in the spirit of EU-wide consistency and legal certainty”, to publicly acknowledge that intent.  It said also that it believes that any civil litigation that might ensue in other jurisdictions will likely be stayed pending resolution of IAB Europe’s appeal in the Market Court.  

Finally, IAB Europe said it is aware that certain advocacy organizations are calling upon advertisers to cease using TCF and OpenRTB, and said it finds such a conclusion unfounded, first, because no advertisers are named parties in the Belgian ruling and second, because the APD has not ordered the IAB Europe to discontinue use of TCF pending its submission of a plan to the APD.