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"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. Yes, it removes the word ‘prior’, but it also removes the reference to browser settings, a reference that’s been relegated to a recital, and recitals matter less than Articles.”

The recital to the new law states:

Third parties may wish to store information on the equipment of a user, or gain access to information already stored, for a number of purposes, ranging from the legitimate (such as certain types of cookies) to those involving unwarranted intrusion into the private sphere (such as spyware or viruses). It is therefore of paramount importance that users be provided with clear and comprehensive information when engaging in any activity which could result in such storage or gaining of access. The methods of providing information and offering the right to refuse should be as user-friendly as possible.

Exceptions to the obligation to provide information and offer the right to refuse should be limited to those situations where the technical storage or access is strictly necessary for the legitimate purpose of enabling the use of a specific service explicitly requested by the subscriber or user. Where it is technically possible and effective, in accordance with the relevant provisions of Directive 95/46/EC, the user's consent to processing may be expressed by using the appropriate settings of a browser or other application. The enforcement of these requirements should be made more effective by way of enhanced powers granted to the relevant national authorities.

"Most browsers don't default to blocking all cookies and most people don't change their browser settings, so it's hard to say that effective consent is conveyed by browser settings," said Robertson. “Also, browsers can’t tell you the purpose of a cookie.”

Information Society Commissioner Viviane Reding said (video, at 13:20) today after the Parliament vote that she was "surprised that certain Member States appeared to call the agreed text on cookies into question".

"In the E-Privacy Directive it is made very clear that a user can only give out his private data if there is prior consent so if there are spy cookies there must be a prior consent of the user, very clearly so," she told a press conference today.

"But there are also the so-called technical cookies, those which make the whole infrastructure of the internet function. Those are not concerned by this rule, just to clarify, because there were some critics that this amendment would make it impossible for the internet to function. It does not, it is a guarantee for the rights of the consumers," she said.

The Commission has confirmed in the past that the current law is intended to control both spyware and cookies. Robertson said he didn't know what Reding meant when she referred to spy cookies.

“Is she talking about cookies that track users across websites to deliver better advertising, or is she talking about more sinister uses? We’re left guessing, unfortunately. Maybe she means what the IAB Europe says the law means – but if that’s the case, I really wish the law itself made that clear.”

He said that he hopes IAB Europe’s interpretation will be supported in member states.

"The next step for this law is implementation in national states," he said. "It would be helpful for everyone if national governments followed IAB Euope's approach."

"If national governments copy and paste the EU text, IAB Europe’s interpretation is open to question. But by then we’ll be at a stage where only a court can provide the answers and I wouldn't be at all surprised if this whole debacle never comes before a court. I just can't see the national regulators wanting to prosecute just because a company uses cookies to select adverts without seeking prior consent."

Copyright © 2009, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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