Europe's data privacy regulators’ latest opinion on cookies is out of step with online businesses and their consumers .
The Article 29 Working Party “Opinion 2/2010 on online behavioural advertising” adopted today, calls for an opt-in by users for placing cookies on their PCs. In a strong rebuttal, Europe’s media and advertising industry united to reject the Opinion, which is out of step with the relationships that businesses and consumers are building online and flies in the face of the reality of the Internet.
Only this week, speaking before the AMCHAM, Commissioner Reding said: "This sector needs clarity not red tape (...). This is why self-regulation could work well in this area to complete the existing rules. I am considering this approach as a way to have codes of conduct (...)".
Angela Mills Wade added that "we welcome this more nuanced approach by the Commission, their confidence in self-regulation and a balance between regulation and business interests."
The Article 29 group is suggesting that whatever “information” is stored in cookies, it must be treated as if it were “personal” data and as such should be subject to explicit, prior consent. The Directive currently does not require an opt-in for cookies. In practice such a requirement would mean that users would have to confirm every single cookie placed on their PCs, leading to a permanent disruption of their Internet experience.
The industry believes this is a gross misinterpretation of the intention of the Directive and a misrepresentation of the type of data typically collected and processed for the purposes of serving interest-based advertising to consumers on our websites. The ePrivacy Directive acknowledged that the controls in modern web browsers give users full and granular control over cookies.
“This opinion takes no account of the support we get from our consumers for interest-based advertising nor of the exchange in value they receive between effective advertising and access to high quality media content for free,” said Stephan Loerke, Managing Director, World Federation of Advertisers (WFA).
“Obviously, the Internet in Europe would become less attractive to users and would significantly undermine the growth potential of the digital economy. Such strict privacy regulations would not only jeopardise the existence of European online companies but would call into question the EU's ambitious Digital Agenda, intended to increase Europeans' access to ultra fast Internet and fostering the e-commerce sector.” said Stephan Noller, CEO of nugg.ad and IAB Europe Chair of the Policy Committee.
As media and advertisers develop new ways of reaching consumers through tailored, interest-based content and new opportunities in matching advertising based on users‟ potential interests, cookies are essential to the smooth functionality underlying these new business models.
“We are looking forward to a dialogue with the Article 29 Working Party to discuss the proposed concepts, their feasibility and practicability and provide our ideas how transparency and choice for users can be increased with more proportionate measures than an opt-in. Self-regulation could be the solution that contributes to increased transparency in a meaningful way that regulation could hardly achieve.” said IAB Europe Vice President Kimon Zorbas.
Nick Stringer, director of regulatory affairs at IAB UK, said: “The working party has failed to strike a realistic balance: between safeguarding consumer privacy and delivering a more customised online experience. It also disregards the serious investment businesses are making to deliver a self-regulatory approach to achieve this balance.”
The Article 29 Working Party consists of the “Privacy Authorities” of the 27 EU Member States. It regularly issues legally non-binding opinions and resolutions on several issues relating to privacy and personal data protection. Cookies are small pieces of text, stored on a user's computer by a web browser. They are used by almost every website and are the backbone of the modern internet as websites use a lot of embedded content and services such as widgets from third party providers. Major browsers and similar applications allow users to control cookies by specifying when and which cookies to accept and to delete.
The revised ePrivacy Directive requires users' consent for placing cookies, which can be expressed implicitly. In point 66 of the new preamble in the ePrivacy Directive, the legislator recognised that special rules for cookies were warranted to avoid significant disruptions of the user‟s experience. The Article 29 Working Party Opinion 2/2010 on online behavioural advertising is available here.
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