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Advertisers say that new cookie law is met by browser settings

Advertising trade bodies have claimed that a new law passed today by the European Parliament will not require website publishers to ask permission to put cookies on a user's computer. They argue that browser settings will imply consent.24 Nov 2009

The European Parliament today voted to approve the European Commission's Telecoms Package of reforms. Part of that package of reforms was a change to EU law on the use of cookies.

Cookies are small text files which websites place on a visitor's computer. Sites can use cookies to identify users and publishers, advertisers and advertising intermediaries rely on them to select adverts for websites.

The now-adopted text says that cookies can be stored on a user's computer, or accessed from that computer, only if the user "has given his or her consent, having been provided with clear and comprehensive information". An exception exists where the cookie is "strictly necessary" for the provision of a service "explicitly requested" by the user. (The official text is found in a 96-page PDF. OUT-LAW has a summary of the relevant parts.)

The Interactive Advertising Bureau (IAB) Europe and publishers' trade body the European Publishers' Council (EPC) have said that they believe that the law says that browsers’ settings will indicate a user's permission to use cookies.

"The ‘Telecom Package’ strengthens security and privacy for internet users. Crucially, the new law provides a solid legal basis for cookie management tools in browsers and other applications," said a statement from the bodies.

The privacy settings of most browsers can be adjusted by users to block or allow some or all cookies.

IAB Europe said that the 'preamble' to the law underlines its case. "The law now clarifies that websites can rely on browser controls and similar applications to define the acceptance of cookies," it said. "Publishers and online marketers support this approach because greater transparency, user-friendly information and easy cookies-management will increase consumer trust and confidence."

The preamble to the new law mentions browser settings. It states, in part: "Where it is technically possible and effective, in accordance with the relevant provisions of [the Data Protection Directive], the user's consent to processing may be expressed by using the appropriate settings of a browser or other application."

Technology lawyer Struan Robertson of Pinsent Masons, the law firm behind OUT-LAW.COM, said that IAB Europe’s interpretation is optimistic but attractive.

"It would be better for everyone if the IAB Europe's view is right," said Robertson. "It is a pragmatic way to interpret a very bad law that otherwise damages the user experience on websites."

To seek consent from users without relying on browser settings, websites might have to provide pop-up messages or landing pages that seek consent to the serving of cookies for purposes that were not “explicitly requested” by users, such as advertising or traffic analysis.

Robertson has previously called the new law "breathtakingly stupid" and said that companies may, in the end, interpret it in the same way as the IAB Europe in a bid to make commercial sense out of it.

"This law affects almost everybody who publishes a website. If everyone interprets the law in this way, the risk of action is low," he said. "Companies will be hoping that national governments and regulators share this interpretation."

IAB Europe's vice president Kimon Zorbas told OUT-LAW.COM that it believed that the European governing bodies had changed their mind about demanding explicit consent for cookie use before a website was used. He pointed out that a previous draft of the text had demanded "prior" consent, but that that had been changed.

A draft version of the law that was rejected in May proposed the following Article 5(3) :

"Member States shall 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 prior consent, which may be given by way of using the appropriate settings of a browser or another application, after having been provided with clear and comprehensive information in accordance with Directive 95/46/EC, inter alia about the purposes of the processing. This shall not prevent any technical storage or access for the sole purpose of carrying out the transmission of a communication over an electronic communications network, or as strictly necessary in order to provide an information society service explicitly requested by the subscriber or user."

The text agreed by the Parliament today provides the following Article 5(3):

"Member States shall 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 or her consent, having been provided with clear and comprehensive information, in accordance with Directive 95/46/EC, inter alia about the purposes of the processing. This shall not prevent any technical storage or access for the sole purpose of carrying out the transmission of a communication over an electronic communications network, or as strictly necessary in order for the provider of an information society service explicitly requested by the subscriber or user to provide the service."

"The previous version said 'prior' and 'after having been provided' – so if they changed it, [they] clearly [meant] something else," said Zorbas. "We believe there is some consent required and that can be implicit consent. There's no reason to believe it's explicit consent."

Robertson said, though, that while the change in the text might imply that, IAB Europe's interpretation is vulnerable to challenge.

"It is difficult, if you look at the text that has been agreed by the Parliament, to read it as meaning that no prior consent is needed," he said. "It says users have to give consent to cookies 'having been provided with' information. I don't see how that's anything other than prior consent. Yes, it removes the word ‘prior’, but it also removes the reference to browser settings, a reference that’s been relegated to a recital, and recitals matter less than Articles.”

The recital to the new law states:

"Third parties may wish to store information on the equipment of a user, or gain access to information already stored, for a number of purposes, ranging from the legitimate (such as certain types of cookies) to those involving unwarranted intrusion into the private sphere (such as spyware or viruses). It is therefore of paramount importance that users be provided with clear and comprehensive information when engaging in any activity which could result in such storage or gaining of access. The methods of providing information and offering the right to refuse should be as user-friendly as possible. Exceptions to the obligation to provide information and offer the right to refuse should be limited to those situations where the technical storage or access is strictly necessary for the legitimate purpose of enabling the use of a specific service explicitly requested by the subscriber or user. Where it is technically possible and effective, in accordance with the relevant provisions of Directive 95/46/EC, the user's consent to processing may be expressed by using the appropriate settings of a browser or other application. The enforcement of these requirements should be made more effective by way of enhanced powers granted to the relevant national authorities."

"Most browsers don't default to blocking all cookies and most people don't change their browser settings, so it's hard to say that effective consent is conveyed by browser settings," said Robertson. “Also, browsers can’t tell you the purpose of a cookie.”

Information Society Commissioner Viviane Reding said (video, at 13’20) today after the Parliament vote that she was "surprised that certain Member States appeared to call the agreed text on cookies into question".

"In the E-Privacy Directive it is made very clear that a user can only give out his private data if there is prior consent so if there are spy cookies there must be a prior consent of the user, very clearly so," she told a press conference today.

"But there are also the so-called technical cookies, those which make the whole infrastructure of the internet function. Those are not concerned by this rule, just to clarify, because there were some critics that this amendment would make it impossible for the internet to function. It does not, it is a guarantee for the rights of the consumers," she said.

The Commission has confirmed in the past that the current law is intended to control both spyware and cookies. Robertson said he didn't know what Reding meant when she referred to spy cookies. “Is she talking about cookies that track users across websites to deliver better advertising, or is she talking about more sinister uses? We’re left guessing, unfortunately. Maybe she means what the IAB Europe says the law means – but if that’s the case, I really wish the law itself made that clear.”

He said that he hopes IAB Europe’s interpretation will be supported in member states.

"The next step for this law is implementation in national states," he said. "It would be helpful for everyone if national governments followed IAB Euope's approach."

"If national governments copy and paste the EU text, IAB Europe’s interpretation is open to question. But by then we’ll be at a stage where only a court can provide the answers and I wouldn't be at all surprised if this whole debacle never comes before a court. I just can't see the national regulators wanting to prosecute just because a company uses cookies to select adverts without seeking prior consent."