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Article 29 Working Party to OBA Industry on Meeting Cookie Consent Requirement: "Nice try, but..."

HL Chronicle of Data Protection

26 August 2011
The EU's Article 29 Working Party has just published a letter addressed to the Online Behavioural Advertising (OBA) Industry regarding the self-regulatory Framework proposed by industry to satisfy the requirement of the revised ePrivacy Directive for user consent before cookies may be placed on a computer for tracking (and targeted advertising) purposes.  The letter was sent in advance of a meeting apparently scheduled for sometime in September between the Working Party and industry representatives to discuss the proposals to satisfy the Cookie Directive.

Simply put, the Working Party has rejected every proposal put forward by industry to avoid the necessity of consumers affirmatively consenting to every placement of cookies by every party proposing to place such cookies.  OBA industry representatives have said that the specific, multiple consent arrangement will impede e-commerce and degrade the user's online experience, heralding a return to multiple pop-ups requiring choices before users may continue to see content.  So far, the Working Party's position is that there is no substitute for a form containing an explanation about the placement of cookies with a box for the consumer to check "I accept," provided by every entity proposing to place a cookie.

The Article 29 Working Party's specific complaints about the industry proposals:

  • A prominent opportunity to object to tracking by cookies can never be the same thing as a specific opt in.
  • The complaint that multiple ad network providers will lead to multiple pop-ups on web sites is not well-founded, since once consent has been given to a network, the pop-up need not appear subsequently.  (The Working Party did not address the issue of what happens before any consents are given and multiple pop-ups seeking consent in fact appear on a given web site except to suggest that perhaps a "centralized way" can be established to obtain consent.)
  • Browser settings rejecting cookies are insufficient since the default is to accept cookies.
  • Icons attached to ads that can be clicked to learn about cookies and express preferences are inadequate because consumers today don't know what the icons mean, and since the Directive applies whether the cookies track personal data or not, the information provided when the icon is clicked making such distinction is inconsistent with the notice requirement.  The icon also was criticized as providing too "indirect" a way to provide notice.

Attached to the Working Party's statement of reasons about the inadequacy of the OBA industry's proposals was a letter from the FTC's Director of Consumer Protection David Vladeck responding to an EU request for the FTC's position on transparency and consumer choice in connection with behavioral advertising.  Notably, the letter explains the value of targeted advertising (while, of course, citing the privacy concerns) and notes "the number of steps to improve transparency and consumer choice" the OBA industry has taken recently.  The letter also notes the guidance the FTC has provided on how to give consumers the "Do Not Track"  power.  The letter from Mr. Vladeck speaks of consumers having a "meaningful opportunity" to control data collection practices, but stops far short of anything resembling the requirements of the Cookie Directive, and the Working Party's reaffirmation, for express opt in for the placement of every tracking cookie.

HL Chronicle of Data Protection

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