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Ad slingers - obeying EU snoop code is NOT GOOD ENOUGH

Industry rules at odds with cookie laws, say watchdogs

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Choice to 'opt out' is no choice at all

"The EASA/IAB Code, instead of seeking users' consent, claims to provide for a way of exercising 'choice'. In fact it is a choice to opt out, as it offers the user the possibility to object to having his/her data collected and further processed for OBA. This 'choice' is not consistent with ... the revised e-Privacy Directive, as the data are in fact processed without user's consent and without providing the user with information before the processing takes place," the opinion said.

The Working Party also expressed concern that individuals who managed their OBA preferences via the 'youronlinechoices.eu' website would themselves be served cookies without consent when opting to choose not to be tracked.

"Although the opt-out cookie prevents the further reception of personalised advertising, it does not stop the advertising network from accessing and storing information in the user's terminal," the opinion said. "On the contrary, it has been demonstrated that an ongoing technical exchange of information between the user’s terminal equipment and the advertising network is still in place after the installation of the opt-out cookie. The user is not informed on whether or not the tracking cookie remains stored in his/her computer and for what purpose."

"The installation of the opt-out cookie does not offer the possibility to manage and delete previously installed tracking cookies, whereas at the same time it creates the mistaken presumption that opting out disables the tracking of internet behaviour," the opinion said.

The 'youronlinechoices.eu' website also contains "JavaScript functions" that track users without proper consent to do so and "in two cases, without any possibility to opt-out from this specific tracking".

The Working Party said that it had concerns about how long data stored about users was being retained for.

"The EASA/IAB Code does not contain any provisions on the amount of data collected and the retention period(s) for the specific purposes. Since the website currently also fails to provide any explanation on this matter, it is unclear how many data are collected by the different advertising networks, how long they are stored, and for what purposes they are being processed. This information is absolutely necessary for a user to make a fully informed decision to consent to such profiling," the watchdogs said.

"In general, given the lack of transparency and public awareness, it is highly undesirable for each advertising network to have a different retention policy in this regard and a self-regulatory initiative would have been very helpful. Such an initiative should at least address the period in which consent can be considered valid, and after which data shall then be deleted," it said.

Nick Stringer, director of regulatory affairs at the IAB UK, told Out-Law.com that the OBA self-regulatory code was not designed specifically to comply with the e-Privacy Directive.

"The self-regulatory EU Framework for online behavioural advertising intends to provide consumers across Europe with greater transparency and control. Through an icon in adverts and information provided, users’ knowledge and ability to control customised advertising will be enhanced. This has been welcomed by the UK Government as a part of its package for compliance with the revised e-Privacy Directive. It should be noted, however, that the work on the EU Framework pre-dates the legislation and is not intended to specifically address compliance with Article 5.3 [of the Directive]. We will continue to work with the European Commission, the Government, the Article 29 Working Party and national regulators on this," Stringer said.

The Working Party said it is possible to obtain users' consent to cookies without having to display multiple 'pop-up' messages on users' screens. Operators could use information banners that requests user consent to cookies and a link to more details about what is being requested, it said. In some cases it may be possible to obtain users' consent to individual ad networks that apply to OBA across different sites or where a single indication of consent is sufficient to enable more than one ad network to place cookies on users' machines, the Working Party said.

Copyright © 2012, OUT-LAW.com

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

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