Prior Consent For Advertising Cookies

The "Article 29 Data Protection Working Party", comprising representatives of EU member state data protection authorities, has published an Opinion that the ePrivacy Directive will require prior informed consent before setting a tracking cookie on a user's browser from May 2011.

As I explained in a June 2009 article for Practical Law on behavioural targeting of online advertising:

"Cookies may be either "session cookies", which are temporary and deleted as soon as you close your browser; or "persistent cookies", which are stored on your computer hard drive until they expire or you remove them. You can configure your browser to warn you whenever a new cookie is about to be stored; clear the cookies that have previously been set; and/or block specific cookies in advance. Of course, you can also choose not to visit a website or use a service whose cookies you do not want to receive."

And as I also explained, "guidance by the Information Commissioner's Office (ICO) allows presumed consent, with a clearly displayed privacy policy or other means of opt out to enable a user's refusal (Article 5(3), E-Privacy Directive, transposed by regulation 6, E-Privacy Regulations)."

But opt-out is not sufficient, the Working Party now says, and relying on users' control of browser default settings will not be considered "in most cases, as meaningful consent... Prior opt-in mechanisms are better suited to deliver (sic) informed consent."

Officials also say that consent should be of limited duration (e.g. a year), easily revoked, and consent tools should be visible where monitoring takes place. There is commentary on how web site publishers, advertisers and advertising network providers should comply. Advertising interest categories aimed at children are discouraged, and in any case prior informed parental consent is likely to be required.

Further consultation is taking place, with selected parties, though other contributions are welcome. Apparently.

In the meantime, you might look forward to a more crowded, interactive browsing experience with lots of guff about cookies, from mid-2011.

Image from Law Is Cool.