Home  › Marketing › Strategies

Europe Continues to Grapple With Messy Cookie Law Situation

  |  November 4, 2010   |  Comments

Confusion over intention of European cookie law revision continues, despite clarification from Parliamentarians.

Local European lawmakers are facing continued confusion over the European Union’s recently revised e-Privacy Directive, which may or may not result in advertisers legally requiring internet users’ prior consent to place cookies on their machines.

Businesses, legal experts, analysts, industry bodies, consumer groups, and politicians remain divided in their interpretations of the directive, specifically around whether or not it will require prior and explicit user consent, or whether consent can instead be inferred through the use of browser settings.

Cookies form the backbone of online advertising, enabling practices such as behavioral targeting and segmentation, but also basic functions including frequency capping and campaign reporting. If European governments implement a prior consent opt-in requirement for these cookies, the implications for the online advertising industry could be severe.

The directive in question was amended in October 2009, and states that national governments of EU member states must "ensure that the storing of information, or the gaining of access to information already stored, in the terminal equipment of a subscriber or user is only allowed on condition that the subscriber or user concerned has given his/her consent, having been provided with clear and comprehensive information."

Some parties argue the wording implies prior consent is a requirement, while others suggest the European Parliament would have included the words “prior” or “explicit” if that was its intention. Others suggest the Parliament lacks real understanding of the situation, and has adopted intentionally vague language to give local governments room to move as they see appropriate. Member states are required to interpret the directive and to implement it through local laws by May 2011 at the latest.

Speaking with the Privacy & Security Law Report published by BNA earlier this month however, European Parliament deputy Alexander Alvaro clearly stated the directive does not call for “explicit” consent, but that consent could indeed be indicated through a default browser setting. Alvaro was the European Parliament’s e-Privacy Directive rapporteur, appointed to investigate and report on the proposed legislation and to lead negotiations between the European Commission, Parliament, and the Council of Ministers regarding its content.

“When the Parliament debated amendments...the ‘‘prior consent’’ formulation was considered and rejected in favor of a wording where the Parliament left more room for flexibility,” he said, adding, “This flexibility is also reflected by the fact that the Parliament eventually adopted Recital 66 that was intended to clarify that use of browser settings could be considered an indication of ‘‘consent.’’

Recitals are additional pieces of information included in the directive, which are intended to provide “an introduction to the new law, sharing the lawmakers' rationale for the provisions that follow,” according to Struan Robertson, legal director at law firm Pinsent Masons.

Alvaro placed emphasis on the use of the recital alongside the wording of the actual article - the portion of the directive that must be enforced - in interpreting the Parliament’s intentions. ‘‘Had the Parliament intended [for example] the placing of all cookies on a user’s terminal to require ‘prior’ and/or ‘explicit’ consent, it would have adopted such language,” he said, adding, “Consent as defined and used in the Data Protection Directive does not have to be prior or explicit.”

Speaking with ClickZ News, IAB Europe VP Kimon Zorbas said his organization is currently “working with the European Commission and member states to ensure the implementation is done properly, and in the interest of consumers.” Zorbas said it is “extremely important” Alvaro made his comments, stating, “We’ve seen many different interpretations... Such a clarification is useful as it shows what Parliament wanted to do with this directive.”

Ultimately however, the local interpretation and implementation now rests with the individual member states, some of which may simply deem their existing laws sufficient to uphold the directive, but some of which may pass new laws to enforce it.

Zorbas suggested the majority of states are likely to shy away from the prior or explicit consent requirement, but expressed concerns surrounding possible inconsistent approaches across the continent. “Logically I would expect some countries to go the wrong way and implement an opt-in,” he said, which would likely cause serious issues for online advertising companies and publishers operating in those markets.

ClickZ Live Toronto Twitter Canada MD Kirstine Stewart to Keynote Toronto
ClickZ Live Toronto (May 14-16) is a new event addressing the rapidly changing landscape that digital marketers face. The agenda focuses on customer engagement and attaining maximum ROI through online marketing efforts across paid, owned & earned media. Register now and save!

ABOUT THE AUTHOR

Jack Marshall

Jack Marshall was a staff writer and stats editor for ClickZ News from 2007 until August 2011. 

COMMENTSCommenting policy

comments powered by Disqus

Get the ClickZ Marketing newsletter delivered to you. Subscribe today!

COMMENTS

UPCOMING EVENTS

Featured White Papers

ion Interactive Marketing Apps for Landing Pages White Paper

Marketing Apps for Landing Pages White Paper
Marketing apps can elevate a formulaic landing page into a highly interactive user experience. Learn how to turn your static content into exciting marketing apps.

eMarketer: Redefining Mobile-Only Users: Millions Selectively Avoid the Desktop

Redefining 'Mobile-Only' Users: Millions Selectively Avoid the Desktop
A new breed of selective mobile-only consumers has emerged. What are the demos of these users and how and where can marketers reach them?

Jobs

    • Contact Center Professional
      Contact Center Professional (TCC: The Contact Center) - Hunt ValleyLooking to join a workforce that prides themselves on being routine and keeping...
    • Recruitment and Team Building Ambassador
      Recruitment and Team Building Ambassador (Agora Inc.) - BaltimoreAgora, www.agora-inc.com, continues to expand! In order to meet the needs of our...
    • Design and Publishing Specialist
      Design and Publishing Specialist (Bonner and Partners) - BaltimoreIf you’re a hungry self-starter, creative, organized and have an extreme...