WFA update: EU Commission guidance on cookies

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20/01/2011
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The European Commission has released a document to advise governments on implementing the new user "consent" requirement for cookies (small text files stored by your internet browser). Up until now, there have been no rules determining the kind of permission, or consent, needed before a browser is allowed to store a cookie.

This "consent" requirement has to be adopted by Member States by June 2011 and is aimed at ensuring that internet users are aware of the cookies that their browser is storing for them. Industry is concerned that some governments will interpret it as a requirement for prior consent from the user (before web content is accessed or downloaded) which may prove disruptive to users looking for seamless interaction with internet applications and complex web page content.
WFA has previously issued guidance for marketers on how the new EU rules on cookies will affect them.

Key points to note:
- The Commission does not define consent as either opt-in or opt-out; rather it sets the conditions which consent has to meet.
- The Commission supports industry's self-regulatory initiative on Interest-Based Advertising (IBA, also known as online behavioural advertising) as a "means to effective application" of these conditions.

On self-regulation:
The Commission notes "that industry is working towards solutions corresponding to the needs of industry, consumers and regulators" and says it is "ready to assist them, and to disseminate any effective solution towards Member States as part of the implementation policy regarding the relevant privacy rules".

On consent:
The wording of the ePrivacy Directive 'does not specify the technical means for informing the user or obtaining consent'.
Consent should be understood as defined in the general Data Protection Directive, i.e. "a freely given specific and informed indication" of somebody's wishes.
'Informed': the user must have the information about the purpose of the intended operations "when deciding on whether or not to consent to this operation".
'Specific': consent must relate to a defined purpose about which the user has been informed when consent was given. Changes in the purpose after consent is obtained cannot be assumed to be covered by that consent. However, where a series of operations are part of processing for the same purpose, it is not necessary to obtain consent for each operation. This means that only one consent is required for cookies used by the same controller for the same purpose.

WFA priorities:
WFA welcomes this guidance to Member States and the recognition of the role of industry through the self-regulatory initiative on IBA. The Commission's guidance is consistent with industry's own guidance to national industry representatives. National industry representatives are encouraged to actively engage with relevant national authorities in order to oppose an opt-in consent requirement for cookies and promote the self-regulatory approach.

For more information on the latest industry developments and next steps for WFA members please contact Malte Lohan: m.lohan@wfanet.org


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