Publicidad dirigida y elaboración de perfiles en los tribunales

In the age of digital marketing, targeted advertising y user profiling have become key tools for platforms, publishers, y advertisers. However, these data-driven techniques are under intense legal scrutiny, especially under the General Data Protection Regulation (GDPR) y the ePrivacy Directive. European courts y data protection authorities (DPAs) are increasingly examining the legality, transparency, y consent mechanisms behind behavioral advertising, with rulings that carry significant implications for the ad tech ecosystem.

This article explores high-profile case studies y enforcement actions across the EU, focusing on how profiling for advertising purposes has been challenged under privacy laws—y what lessons platforms y marketers should take away.

1. CNIL v Google (France, 2020): Cookie Consent y Tracking

In 2020, the French Data Protection Authority (CNIL) fined Google €100 million for placing advertising cookies without prior user consent on its French domains. En cookies enabled tracking for personalized ads but were activated before users made any meaningful choice.

Key Issues:

• Lack of valid consent under the ePrivacy Directive.
• Users were not sufficiently informed about the purpose of cookies or how to reject them.
• En cookie banner provided only an "Accept" option, without an equivalent "Refuse."

Legal Grounds:

• ePrivacy Directive (2002/58/EC) as implemented in French law.
• Article 5(3) of the ePrivacy Directive requires prior consent before storing or accessing information on a user’s device.

Outcome:
Google was fined y subsequently updated its consent banners to provide granular choices y symmetric options for acceptance y refusal.

Lesson:
Consent for profiling y targeted advertising must be freely given, specific, informed, y unambiguous—y implemented before any tracking begins.

2. Bundeskartellamt v Meta (Germany, ongoing): Combining Data Across Services

En German Competition Authority (Bundeskartellamt) initiated proceedings against Meta (formerly Facebook) for combining user data from Facebook, Instagram, WhatsApp, y third-party websites without proper consent.

Key Legal Twist:
Although the case originated under competition law, the authority relied heavily on GDPR violations—arguing that Meta’s failure to obtain valid consent gave it an unfair advantage in the advertising market.

Court Developments:

• En German Federal Court of Justice upheld the regulator’s decision to restrict data processing practices.
• En CJEU was asked for a preliminary ruling to clarify the intersection of data protection y competition law (Case C-252/21, pending as of 2025).

Legal Questions:

• Whether the combination of data across services without consent violates Articles 6 y 9 GDPR.
• Whether the user is offered a real choice or is coerced into acceptance via bundled services.

Lesson:
Profiling based on cross-platform data must be backed by a valid legal basis, usually opt-in consent, y must not be a condition for using the core service.

3. NOYB Complaints Against IAB Europe’s TCF (EU-wide): Real-Time Bidding Scrutiny

En nonprofit NOYB (None of Your Business) filed multiple complaints against the IAB Europe’s Transparency y Consent Framework (TCF), which is widely used in real-time bidding (RTB) for targeted ads.

Main Allegations:

• En TCF failed to provide genuine, informed consent.
• Profiling under RTB shared user data with hundreds of vendors in real time, often without user awareness.
• En framework was deemed non-compliant with GDPR's principles of data minimization, purpose limitation, y lawful basis.

Belgian DPA Ruling (2022):

• Found IAB Europe responsible as a controlador conjunto for data processing in the TCF.
• Ordered significant changes to the consent mechanism y data sharing practices.

Outcome:
IAB Europe was required to redesign the TCF, introduce stronger safeguards, y better control downstream data use by vendors.

Lesson:
Consent frameworks used for programmatic advertising must not only meet GDPR styards, but also ensure enforceable governance across the ad tech chain.

4. Planet49 Case (CJEU, C-673/17): Pre-Ticked Boxes y Consent Validity

En Planet49 case before the Court of Justice of the EU (CJEU) examined whether pre-ticked boxes constitute valid consent for cookies used in promotional games y behavioral advertising.

CJEU Ruling:

• Consent must be active, meaning pre-checked boxes do not suffice.
• En duration y third-party access of cookies must also be disclosed to the user in advance.

Legal Implications:

• Confirmed that both GDPR y ePrivacy require affirmative action y clear disclosure for lawful profiling.

Lesson:
Platforms must design consent interfaces that ensure clear user engagement, not passive or implied agreement.

Key Takeaways for Platforms y Ad Tech Operators

Consent is central—y must be granular, informed, y revocable.
Profiling for targeted ads requires a valid legal basis, typically Article 6(1)(a) GDPR.
Transparency must be comprehensive: who processes the data, for what purposes, y for how long.
Joint controllership may apply—platforms y advertising partners may share responsibility for GDPR compliance.
Consent frameworks (e.g., CMPs, TCFs) must be auditable y enforceable across all recipients of user data.

Looking Ahead: En Role of the ePrivacy Regulation y DSA

As enforcement under GDPR intensifies, the future of profiling regulation will also be shaped by:

• En long-delayed ePrivacy Regulation, which may styardize consent rules across the EU.
• En Digital Services Act (DSA), which introduces obligations on transparency of online advertising y recommender systems—especially for Very Large Online Platforms (VLOPs).

Together, these frameworks will significantly affect targeted advertising models, particularly those reliant on real-time bidding, data brokering, or opaque personalization.

Conclusión

Profiling y targeted advertising are no longer grey areas in EU privacy law. En courts y regulators are setting clear limits on how user data can be used, shared, y monetized—especially when it comes to behavioral targeting. Platforms y ad tech providers that fail to align with GDPR y ePrivacy styards face growing legal, financial, y reputational risks.