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W3C: 'Do not track' by default? A thousand times: NO!

Punters should have to switch it on, says standards body

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New technology that stops websites gathering information about users should not be switched on by default, but should require an explicit instruction to begin working, an internet standards body has said.

The World Wide Web Consortium (W3C), which is responsible for ensuring that web technology is based on an agreed set of technical standards, has been working on developing a new 'do not track' (DNT) control system for operation within web browser settings. It has said that the controls should not to be set by default. Instead, internet users would have to provide their "explicit consent" to activate them.

Jonathan Mayer of Stanford University, who has been working on the new standard, said that W3C had worked on a "compromise proposal" which would prohibit online publishers using cookies to track their users' online activity once those users had enabled the DNT option. However, "affiliate information sharing" about users can continue even once DNT controls have been activated, Mayer said.

According to the W3C's proposals "any commercial, nonprofit, or governmental organisation, a subsidiary or unit of such an organization, or a person" is considered an 'affiliate' if they are "related by both common majority ownership and common control" to other such groups or people.

Under W3C's plans internet users would be able to prevent web companies tracking users in order to serve personalised content as well as targeted adverts using the DNT technology. However, individual website operators would be able to serve such content to users if those users grant them permission to do so. That permission can be obtained through the DNT system or "from 'out-of-band' consent attained through a different technology" under certain conditions, it said.

Out-of-band consent is only considered as being legitimately attained, according to W3C's proposals, if users have expressed their choice having been directly presented with a "choice mechanism" that uses "clear, non-confusing terminology" and where the choice is "presented independently" and not "bundled with other user preferences."

First-party websites would generally not be permitted to pass on information they collect about users to third parties, such as advertisers, if the third parties themselves are "prohibited" from seeing it, under W3C's DNT plans. There are circumstances however, such as on the grounds of security concerns or fraud prevention, where publishers could ignore the DNT settings in order to send information about users to others.

In November last year, W3C published plans on how publishers should comply with DNT. It said at the time that it hopes its DNT standards would be in operation by the middle of 2012 and added that it would provide an "exceedingly straightforward" way for internet users to control their privacy.

EU Commissioner Neelie Kroes, who is responsible for delivering the European Commission's Digital Agenda, has urged internet companies to form a universal DNT standard and had placed a deadline on the development of that standard for this month.

In January earlier this year, Kroes reiterated comments she had made in June 2011 by calling for "agreement on a do-not-track standard by June of this year." Last June she warned internet firms that she would "not hesitate to employ all available means to ensure our citizens' right to privacy" if a standardised system for indicating user consent to their online activity being tracked was not agreed within the year.

However, Kroes' support for the US-driven DNT system was called into question by the EU's dedicated privacy watchdog last year. Peter Hustinx, the European Data Protection Supervisor, said Kroes was giving out inconsistent advice to website owners on how they should obtain users' consent to 'cookies'. He said that the DNT system "although valuable" seemed to "fall short" of the requirements for obtaining lawful consent to serve cookies as set out in the EU's Privacy and Electronic Communications (ePrivacy) Directive.

Cookies are small text files that record internet users' online activity. Websites store the information on a user's computer, but the ePrivacy laws say users should be allowed to choose whether or not to accept cookies or not. Changes made last year to the UK's Privacy and Electronic Communications Regulations mean that website operators must now generally obtain users' "informed consent" in order to serve them with cookies.

Copyright © 2012, Out-Law.com

Out-Law.com is part of international law firm Pinsent Masons.

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