Caroline Greer
Director of Public Policy & Government Relations
TikTok
Access Now, an international human rights organisation with a mission to defend and extend the rights of users at risk in the digital age, are writing to you to bring your attention to the privacy, data protection, and fairness issues related to the launch of TikTok’s “Focused View” feature. This feature, which was announced on 13 October 2022, has been in effect since 20 October 2022.
As a global organisation, we fight to advance robust, rights-respecting, and user-centric data protection policies and frameworks. TikTok’s Focused View feature appears at odds with existing EU privacy law, commercial law, and your own commitments to “respect human rights throughout our business” and to “comply with applicable laws and regulations intended to promote human rights”.
Focused View is a “pay-if-users-engage” feature for advertisers. It promises brands that their ads will be shown to users who are “truly paying attention” and are “emotionally and tangibly engaged”. Additionally, brands will only pay for their ad if people voluntarily watch it for at least six seconds. These promises imply that TikTok is actively and specifically tracking users’ behaviour on the platform and suggests that TikTok is able to determine users’ “emotions”. If so, these practices raise important issues with the company’s compliance and understanding of privacy, data protection, and upcoming AI rules in Europe. Alternatively, if some of these promises are not realised, brands may question the validity of your claims and your compliance with EU commercial rules, including the unfair commercial practices directive.
To better understand and get clarity on your claims surrounding Focused View, we would appreciate you providing us with detailed answers to the following questions by the end of the month:
- Did you conduct any impact assessments, including a data protection impact assessment, to identify the human rights risks of this feature?
- If yes, :
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- What type of assessment did you conduct and could you make it available to the public?
- Did you consult relevant stakeholders including community members and human rights experts? Did you consult with data protection authorities, including with the lead authority for your operations in the European Union, the Irish Data Protection Commission?
- Did you take any step to address and prevent potential human rights risks?
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- If not, why not?
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- How did you consider your legal obligation pursuant Article 35 of the General Data Protection Regulation in relation to Data Protection Impact Assessment?
- In your own commitment to human rights you state: “We will continuously evaluate our operations to identify, assess, and address salient human rights risks; engage key stakeholders; and prioritise key areas where we have the greatest opportunity to have a positive impact.” How do you reconcile compliance with this commitment if you did not evaluate the human rights risks of Focused View?
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- What user data do you process to measure and assert that a person is giving their “voluntarily undivided attention” to an ad and is “emotionally engaging” for at least six seconds?
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- How do you consider such activity to be “voluntary”?
- Are you gaining access, storing, placing or otherwise interfering with user terminal equipment during these processes, for example, to perform eye tracking? If so, did you assess your obligations linked to any processing falling under the scope of the ePrivacy Directive?
- What legal basis available under the General Data Protection Regulation are you relying on to ensure the lawfulness of the different processing taking place for all or some of these activities?
- How are you assessing your compliance with the Unfair Commercial Practice Directive and the Directive on misleading and comparative advertising regarding the claims you make to brands when promoting Focused View?
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- In particular, how are you complying with Article 3 (a) (b) of the Directive on misleading and comparative advertising, when you promote a service for brands on TikTok.com, which suggests you have the ability to assert if a person is watching an ad:
- “voluntarily”,
- for six seconds, and
- with an “emotional and tangible engagement”.
- How can you demonstrate to brands that you complete each and all three claims above?
- In particular, how are you complying with Article 3 (a) (b) of the Directive on misleading and comparative advertising, when you promote a service for brands on TikTok.com, which suggests you have the ability to assert if a person is watching an ad:
We would greatly appreciate a public response by the end of February 2023.
Sincerely,
Access Now