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Debate on how to comply with new cookie law continues

Cookies are small text files that record internet users’ online activity and which websites store on users’ machines. Publishers and advertising networks use cookies to track user behaviour on websites in order to show certain adverts to individuals based on that behaviour.

In April the Internet Advertising Bureau Europe (IABE) and European Advertising Standards Alliance (EASA) established a new self-regulatory code on online behavioural advertising.

The idea behind the Code is that companies have to display an icon telling users that the adverts track their online activity. The use then has various options to track and control the information being collected. The initiative is supported by many leading content providers, including the BBC, Financial Times and Telegraph Media Group, as well as AOL, Microsoft and Yahoo! Operators must also give users access to any easy method for turning off cookie tracking on their site, and must make it known to users that they collect data on them for behavioural advertising, the new regulations stipulate.

The European committee of national data protection regulators, the Article 29 Working Party, said that the code’s requirements were not sufficient to ensure websites complied with EU cookie laws. The EU’s Privacy and Electronic Communications Directive provides that storing and accessing information on users’ computers is only lawful “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”.

An exception exists where the cookie is “strictly necessary” for the provision of a service “explicitly requested” by the user – so cookies can take a user from a product page to a checkout without the need for consent, for example.

“While this mechanism is welcome and constitutes an improvement to the current situation, it does not meet the requirement to obtain the aforementioned informed consent. For such mechanism to be a valid form of consent, it should leave no doubt about the users wishes. It can not be concluded that users who have not objected to being tracked for purposes of serving behavioural advertising have exercised a real choice,” Jacob Kohnstamm, Chairman of the Working Party, said.

We continue to watch this space…

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