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Advertisers say new cookie law met by browser settings

Implied consent innit

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Advertising trade bodies have claimed that a new law passed this week by the European Parliament will not require website publishers to ask permission to put cookies on a user's computer. They argue that browser settings will imply consent.

The European Parliament today voted to approve the European Commission's Telecoms Package of reforms. Part of that package of reforms was a change to EU law on the use of cookies.

Cookies are small text files which websites place on a visitor's computer. Sites can use cookies to identify users and publishers, advertisers and advertising intermediaries rely on them to select adverts for websites.

The now-adopted text says that cookies can be stored on a user's computer, or accessed from that computer, only if the user "has given his or her consent, having been provided with clear and comprehensive information". An exception exists where the cookie is "strictly necessary" for the provision of a service "explicitly requested" by the user.

(The official text is found in a 96-page PDF. OUT-LAW has a summary of the relevant parts.)

The Interactive Advertising Bureau (IAB) Europe and publishers' trade body the European Publishers' Council (EPC) have said that they believe that the law says that browsers’ settings will indicate a user's permission to use cookies.

"The ‘Telecom Package’ strengthens security and privacy for internet users. Crucially, the new law provides a solid legal basis for cookie management tools in browsers and other applications," said a statement from the bodies.

The privacy settings of most browsers can be adjusted by users to block or allow some or all cookies.

IAB Europe said that the 'preamble' to the law underlines its case. "The law now clarifies that websites can rely on browser controls and similar applications to define the acceptance of cookies," it said. "Publishers and online marketers support this approach because greater transparency, user-friendly information and easy cookies-management will increase consumer trust and confidence."

The preamble to the new law mentions browser settings. It states, in part: "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."

Technology lawyer Struan Robertson of Pinsent Masons, the law firm behind OUT-LAW.COM, said that IAB Europe’s interpretation is optimistic but attractive.

"It would be better for everyone if the IAB Europe's view is right," said Robertson. "It is a pragmatic way to interpret a very bad law that otherwise damages the user experience on websites."

To seek consent from users without relying on browser settings, websites might have to provide pop-up messages or landing pages that seek consent to the serving of cookies for purposes that were not “explicitly requested” by users, such as advertising or traffic analysis.

Robertson has previously called the new law "breathtakingly stupid" and said that companies may, in the end, interpret it in the same way as the IAB Europe in a bid to make commercial sense out of it.

"This law affects almost everybody who publishes a website. If everyone interprets the law in this way, the risk of action is low," he said. "Companies will be hoping that national governments and regulators share this interpretation."

IAB Europe's vice president Kimon Zorbas told OUT-LAW.COM that it believed that the European governing bodies had changed their mind about demanding explicit consent for cookie use before a website was used. He pointed out that a previous draft of the text had demanded "prior" consent, but that that had been changed.

A draft version of the law that was rejected in May proposed the following Article 5(3) :

Member States shall ensure that the storing of information, or the gaining of access to information already stored, in the terminal equipment of a subscriber or user is only allowed on condition that the subscriber or user concerned has given his/her prior consent, which may be given by way of using the appropriate settings of a browser or another application, after having been provided with clear and comprehensive information in accordance with Directive 95/46/EC, inter alia about the purposes of the processing. This shall not prevent any technical storage or access for the sole purpose of carrying out the transmission of a communication over an electronic communications network, or as strictly necessary in order to provide an information society service explicitly requested by the subscriber or user.

The text agreed by the Parliament today provides the following Article 5(3):

Member States shall ensure that the storing of information, or the gaining of access to information already stored, in the terminal equipment of a subscriber or user 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, in accordance with Directive 95/46/EC, inter alia about the purposes of the processing. This shall not prevent any technical storage or access for the sole purpose of carrying out the transmission of a communication over an electronic communications network, or as strictly necessary in order for the provider of an information society service explicitly requested by the subscriber or user to provide the service.

"The previous version said 'prior' and 'after having been provided' – so if they changed it, [they] clearly [meant] something else," said Zorbas. "We believe there is some consent required and that can be implicit consent. There's no reason to believe it's explicit consent."

Robertson said, though, that while the change in the text might imply that, IAB Europe's interpretation is vulnerable to challenge.

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