The European Parliament adopted with a very large majority the Telecom Package (510 votes in favour, 40 against, 10 abstentions). This package includes the ePrivacy Directive (2002/58/EC) of relevance to agencies as it aims to strengthen security and privacy for internet users.

Crucially, the new law provides a legal basis for cookiemanagement tools. The text agreed by the Parliament provides thefollowing Article 5(3) on cookies:

“Member States shall ensure that the storing of information, orthe gaining of access to information already stored, in theterminal equipment of a subscriber or user is only allowed oncondition that the subscriber or user concerned has given his orher consent, having been provided with clear and comprehensiveinformation, in accordance with Directive 95/46/EC, inter aliaabout the purposes of the processing. This shall not prevent anytechnical storage or access for the sole purpose of carrying outthe transmission of a communication over an electroniccommunications network, or as strictly necessary in order for theprovider of an information society service explicitly requested bythe subscriber or user to provide the service.”

The official text can be found at: DIRECTIVEOF THE EUROPEAN PARLIAMENT AND OF THE
COUNCIL (PDF, 371 KB).

What remains unclear is how ‘consent’ should be interpreted andif browser settings can indicate a user’s permission to usecookies. The preamble to the new law does mention browser settingsand states that “Where it is technically possible and effective, inaccordance with the relevant provisions of the Data ProtectionDirective, the user’s consent to processing may be expressed byusing the appropriate settings of a browser or otherapplication.”

To seek consent from users without relying on browser settings,websites might have to provide pop-up messages or landing pagesthat seek consent to the serving of cookies for purposes that werenot ‘explicitly requested’ by users, such as advertising or trafficanalysis.

EACA will support the interpretation whereby browsers’ settingsindicate a user’s permission to use cookies but believes industrymust signal its commitment to increase transparency, developuser-friendly information and easy cookie management.

It is indeed to be expected that the European Commission,consumer associations and NGOs question the fact that effectiveconsent is conveyed by browser settings.

EACA will discuss the way forward with its sister associations atEU level and make sure this issue is managed in a collaborative andconstructive manner.

EACA is also currently involved in discussions to agree on a setof best practices for online advertising in order to be preparedfor the future European Commission’s digital agenda and the newstakeholder forum it has created on ‘Fair Data Collection’.