Out-Law News 3 min. read
26 Nov 2009, 2:24 pm
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."
