Episode 13: A Ritual Without a Religion | How Europe Almost Killed
the Cookie Banner — and Who Saved It
Brussels proposed the one piece of deregulation everybody claims
to want: set your tracking preference once, and never see a
cookie banner again. Then Germany, France, Poland and Google
teamed up to save the banner. Underneath the absurdity: does
advertising actually need tracking? Two hosts, two sets of
numbers, one honest fight — and neither of them wins it cleanly.
In this episode:
00:00–02:42: Cold Open & The Sound of the
Web. How many cookie banners did you click away today? Nobody
knows — and that isn't a failure of memory, that's the design.
Then the ritual itself: the wall before the article, 847
partners who value your privacy, the big friendly Accept
button, the Reject button that is sometimes there and sometimes
buried under forty toggles and a separate set of legitimate
interest switches. The most visible piece of European tech
regulation ever built, billions of clicks per day. And the
setup for the whole episode: this year, Europe almost killed it
— and then Germany, France and Google saved it.
02:42–08:17: What Almost Happened. The Digital
Omnibus explained fast: one law amending many, most of it
written for compliance departments. Buried inside it, one
article written for users. Article 88b would have made a
machine-readable privacy signal legally binding — set once in
your browser, operating system or a consent agent, and websites
must respect it, with a carve-out for journalistic media. The
idea is fifteen years old: Do Not Track existed, was voluntary,
and was ignored until the standards body gave up in 2019. Then
the deletion: a leaked Council document shows the Cypriot
presidency's compromise striking 88b entirely. Germany, France
and Poland pushed for it, citing possible harm to the European
economy and a missing impact assessment — an objection raised
for the one article that helps users and for none of the twenty
that help the ad industry. Google's paper "Gone in one click"
puts the damage at forty to fifty billion euros; German
industry associations and, awkwardly, the press publishers line
up behind it. Plus Germany's own consent management regulation,
which was defanged at the last minute and produced exactly one
certified service.
08:17–15:00: The Actual Fight — Does
Advertising Need Tracking? Markus makes the case for contextual
advertising: a hundred years of ads sold against context, the
washing machine that follows you for three weeks after you
bought it, and the Dutch broadcaster NPO, whose sales house
Ster switched off third-party tracking in January 2020 and saw
revenue rise sharply year over year — with ninety percent of
visitors opting out when saying no was made easy. Add the
research finding that behavioural targeting earns the publisher
only around four percent more, and the conclusion writes
itself: tracking isn't necessary for advertising, it's
necessary for the intermediary chain. Then Sarah takes it
apart, point by point. The NPO analysis was written by Brave's
chief policy officer, and year-over-year is not a controlled
experiment. NPO sells context because NPO has context — the
niche forum and the recipe blog don't, so killing tracking may
redistribute from small publishers to large ones. Performance
marketing runs on attribution, and privacy-preserving
measurement is honestly worse. And the first-party paradox:
after Apple's App Tracking Transparency, money didn't leave
advertising, it moved to whoever already has logged-in users.
Her closing question — do you want less tracking, or less
Google?
15:00–17:10: Where Do We Land. Markus concedes
the strongest point and then names its limit: an argument about
market structure is not an argument about users, and "don't
protect people because it might help the biggest tracker" is
hostage logic. The reframe both hosts can sign: the question
isn't whether advertising needs tracking, it's who carries the
transaction costs of the decision. Right now the user does,
billions of times a day, under fatigue, on interfaces
engineered toward yes. Article 88b banned nothing — tracking
with consent would have stayed perfectly legal. It moved the
cost of asking from the user to the company. And the tell
hidden inside Google's own number: if revenue collapses the
moment saying no becomes easy, the consent was never real. A
business model that survives only while "no" is exhausting
doesn't have an efficiency problem, it has a legitimacy
problem. Set against that, the uncomfortable counterweight —
this deal financed the open web for twenty years, and nobody
built the alternative.
17:10–23:11: Zoom Out — Labels, Lobbying and
Delaware. What the banner story reveals about the whole
omnibus. The AI Act's heavy obligations for high-risk systems
were postponed to 2027 and 2028; the cheap trust rule was not.
Since 2 August the transparency obligations apply: AI-generated
content labelled, chatbots identified, fines up to fifteen
million euros or three percent of global turnover — which is
why this show discloses its synthetic host in every episode.
The pattern: labels survived because no business model depends
on hiding them, while privacy signals threaten a
two-hundred-billion-euro machine. A rule's fate depends on
whose margin it touches. Then the transatlantic comparison, and
the constructive ending: if Europe wants to compete, the answer
isn't copying American deregulation, it's copying Delaware —
winning by being the best place to incorporate rather than the
strictest regulator. The EU Inc. proposal as exactly that
attempt, with one caveat: Europe already has a European company
form, the SE, and it never became Delaware. Two predictions
close the episode.
23:11–25:05: Outro Song. "Sarahs Tech" — like
the host, mainly synthetic: the track was produced primarily
with AI.
Key Takeaways:
The Banner Is Not a Bug, It's Leverage: Cookie
banners persist because the friction is productive. Ninety
percent said no at NPO when refusing was made genuinely easy —
which is precisely the number that explains how consent
interfaces are designed.
88b Was Deregulation, and It Still Lost: The
one article in the entire omnibus that reduced clicks for
ordinary users is the one that got struck. It didn't ban
tracking; it moved the cost of asking from the user to the
company. That was enough to mobilise against it.
Follow the Impact Assessment: Demanding one
for the single user-facing measure, while twenty deregulatory
articles pass without, isn't methodology — it's a tell about
whose interests are being represented.
"Does Advertising Need Tracking" Is the Wrong
Question: Contextual works, sometimes spectacularly,
but mostly for publishers who already own premium context. The
real dependency isn't ads, it's measurement and the
intermediary chain — which is why the honest debate is about
attribution and market structure.
The Number Is the Confession: If making
refusal easy costs forty to fifty billion euros, then the
willingness to be tracked at a fair price of one click is close
to zero. That's not an efficiency problem. It's a legitimacy
problem.
Win Like Delaware, Not Like a Lobby: Europe
doesn't get competitive by protecting the tracking industry's
margin. It gets competitive by being the easiest place on earth
to build a company — which is what EU Inc. is for, if founders
actually choose it.
Sources & Further Reading
The deletion of Article 88b
netzpolitik.org, 24 June 2026 — "Deutschland und Google
wollen Cookie-Banner retten": the leaked Council document, the
Cypriot presidency compromise, and the positions of Germany,
France and Poland.
noyb, 23 June 2026 — "EU Member States (and Google) suddenly
want to keep cookie banners!": Max Schrems's reaction, and the
Council position document.
vzbv, December 2025 — "Digitaler Omnibus: Verfehlte Ziele,
geschwächte Rechte" (PDF): the consumer organisation's analysis
of Article 88b, including the standardisation dependency and the
media carve-out.
BVDW, March 2026 — Stellungnahme Digital Omnibus (PDF): the
industry's own case for striking 88b, in its own words. Worth
reading alongside the critics rather than instead of them.
Does advertising need tracking?
Brave, July 2020 — six months of NPO/Ster revenue data: the
primary source for the contextual advertising case, written by
Johnny Ryan, then Brave's chief policy officer. Read it knowing
who published it.
The Register, July 2020 — coverage of the NPO figures: the
January +61% and February +76% numbers in context.
Marotta, Abhishek & Acquisti (2019), "Online Tracking and
Publishers' Revenues: An Empirical Analysis" — the study behind
the roughly four percent publisher uplift from behavioural
targeting.
The wider package
European Commission, Digital Omnibus proposal, CELEX
52025PC0837 — the original text, including the Commission's
reasoning for Article 88b.
Louisa Specht-Riemenschneider, Germany's federal data
protection commissioner, appeal for binding consent signals
(reported by heise, August 2026), including the single certified
consent management service under Germany's own regulation.
European Commission, 18 March 2026 — EU Inc.: incorporation
in 48 hours, under €100, no minimum capital, EU-wide employee
stock options.
the28thregime.eu: independent tracker for the EU Inc.
legislative file, useful because this is a moving target.
Related episodes: Three Lost Platforms — why
Europe keeps winning the device and losing the layer. And The
Imaginary ETF — where European tech is actually owned.
Disclosure: Sarah Vailby is a synthetic host.
Her voice is AI-generated and disclosed in every episode, in line
with the AI Act's transparency obligations. Markus works in the
web hosting industry. This show uses no tracking pixels.
Feedback: If you sell advertising, buy it, or
build the websites that carry it: would binding privacy signals
have helped you or hurt you? And be specific — we're more
interested in your numbers than in your position. Send your view
— anonymously if you prefer — to feedback@experten-system.de. The
best responses make it into a future episode.
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