The World Federation of Advertisers (WFA), which claims to
represent the companies behind 90% of the world' advertising
spending, has warned that new EU laws on websites' use of cookies
could obstruct people's use of the internet and damage the
prospects of advertisers and the web publishers who rely on their
backing.
The European Parliament passed a Telecoms Package of reforms
this week in what was the wide-ranging proposal's final legal
hurdle. The reforms will have to become law in all 27 EU member
states.
They include an insistence that the storage of cookie files on a
user's computer "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 … about the
purposes of the processing".
This has raised the possibility that people visiting websites
for the first time will have to manually approve every cookie
stored on their machine. One web page can contain multiple cookies,
as can adverts on those web pages.
A 'recital', or non-binding preamble, to the text says that some
cookies can be consented to by a person's browser settings, which
can be changed to block or accept some or all cookies.
"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."
But the text itself makes no mention of browser settings and
appears to suggest that active consent will be required by every
website.
The WFA has said that if this is the case it would be damaging
to the advertising and web publishing industries.
"[The] preamble to the Directive states that obtaining 'consent'
should be interpreted as offering users a 'right to refuse'
cookies, and that this can be expressed using the settings of a
browser or similar application," said a WFA statement. "If
implemented correctly, the new rules can help strengthen consumer
trust in the online marketplace and thereby further solidify the
growing importance of the digital economy in Europe."
"However the Directive itself leaves room for more restrictive
interpretations that could, if followed in some Member States,
heavily disrupt users’ online experience, reduce consumer trust in
the digital marketplace, and create considerable uncertainty for
businesses," it said.
The body has urged an interpretation that does not demand active
consent to every cookie.
"WFA calls on the Member States and the European Commission to
ensure that the consent requirement for cookies is interpreted in
the sensible way set out in the Directive’s preamble, for the
benefit of consumers, businesses and the wider European economy
alike. A user-friendly solution should seek to strengthen consumer
information about cookies as well as their right to refuse them if
they wish, without unduly disrupting the operation of the internet.
This solution should include the use of browser settings where
possible and effective," said the statement.
WFA director of public affairs Malte Lohan said that, whichever
interpretation is correct, the industry should act together to help
consumers to understand where they stand.
“Consumer trust in our brands is paramount for advertisers, and
transparency and user choice about data collection are important
factors in this”, Lohan. "We must now work towards uniform
implementation of the new cookies rule across the EU on the basis
of a clear understanding of how users’ interests are best
served.”
Another advertising trade body, the Interactive Advertising
Bureau (IAB) Europe, has also urged countries to adopt an
interpretation that would allow sites to rely only on browser
settings.
"The law now clarifies that websites can rely on browser
controls and similar applications to define the acceptance of
cookies," said an IAB Europe statement this week. "Publishers and
online marketers support this approach because greater
transparency, user-friendly information and easy cookies-management
will increase consumer trust and confidence."
Technology law expert Struan
Robertson of Pinsent Masons, the law firm behind OUT-LAW.COM,
is not so sure, though, that the IAB Europe's argument that the law
does not require 'prior consent' can be supported.
"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."
Disclaimer: We hope you find OUT-LAW’s content useful. It’s prepared by the lawyers at Pinsent Masons. Please remember, though, that it’s intended as general information only. It’s not legal advice. If that’s what you’re seeking, please
contact us. See also: our
full disclaimer
