As you likely know, on May 25, 2011, new European Union (EU) privacy regulations went into effect in the United Kingdom. They are an amendment to the European Union Privacy and Electronic Communications “E-Privacy” Directive (2009) and require marketers and website owners to get specific consent from European users before using cookies or other technologies to do anything from customizing online experiences, to using a web analytics tool, to auto log-in, to recommending products, and even just tracking people around the rest of the web.
Why has the EU switched gears on cookies? When the European Commission first adopted the E-Privacy Directive, it allowed for an opt-out approach for most types of cookies. However, in the following two years, “A transatlantic debate on the topic of ‘behavioral tracking’ has unfolded; privacy regulators on both sides of the Atlantic have soured on cookies and online tracking in general,” according to Jay Cline, president of Minnesota Privacy Consultants. The New York Times ran a front-page series on the expansive cookie practices of Yahoo and others, and the Federal Trade Commission’s attitude toward behavioral tracking.
Unfortunately, not a lot of clear direction has been given to those of us trying to comply with the regulations. Many EU countries have yet to create laws based on the directive, and it’s not clear how aggressively various governments will enforce opt-in cookies. “It’s noteworthy that continental Europe tends to view the UK as falling on the permissive end of the spectrum for privacy regulation,” Cline says. “If you think the UK approach is strict, just wait for France, Germany, Spain, and Italy to lay down the law on cookies.”
So if you are confused about what is required, you are not alone. What makes things even harder is that requirements will vary from country to country.
The U.K. Information Commissioner’s Office (ICO) has published some guidance. The latest amended regulations seem to allow for technical/automated solutions by retaining this paragraph:
(3A) For the purposes of paragraph (2), consent may be signified by a subscriber who amends or sets controls on the internet browser which the subscriber uses or by using another application or programme to signify consent.
Note the word “may” in there. It’s not clear if browser settings are going to be enough for the U.K. regulators. If they are, then many other EU nations may follow suit. However, it’s not a good idea to sit back and wait. The U.K. law has a grace period of one year, but a company’s effort (or lack of effort) to comply during the next year will be taken into consideration when enforcement begins in May 2012.
What Should Marketers Do?
- Know what types of cookies and other tracking mechanisms you are using. “First-person session cookies are seen as more privacy friendly and necessary, for example, than third-party persistent cookies,” Cline advises. Talk to your IT and your web analytics teams to fully understand.
- Review how your website is architected. What would happen to user experience if most visitors did not check your cookie opt-in box? This is the same exercise as with the advent of mobile-device browsers that couldn’t take full advantage of many site features.
While an unending series of pop-ups doesn’t seem to serve any one well – consumers or regulators – collecting express consent via a simple opt-in checkbox could make sense for all marketers on their home and landing pages at least. For example, the U.K.’s ICO, that should know what it’s doing, uses this approach as a simple page header:
- Collect and manage the data on your landing pages. Here is where technology is your friend. Use your marketing automation or eCRM software to help you collect, store, manage, and utilize this information so that future email or other messaging can reflect custom landing pages for those who have provided an express opt-in.
The U.K. Direct Marketing Association has also published some guidance on the directive. I expect that as U.K. companies start to comply and other EU nations begin to publish guidelines, that the true impact of the directive will be clearer. In the meantime, please let us know what you are doing to comply in your business.
Please note that I am not a lawyer, and this is in no way to be construed as legal advice. As with all regulations, please seek direction from your own legal counsel.
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