Debate still swirls around how UK website operators and email marketers who use cookies need to react to new EU cookie laws. Nick Johnson reports on the latest bid by the online advertising industry to head off an approach to enforcing the new laws that could choke the use of cookies for behavioural tracking.
Topic: Online advertising
Who: Internet Advertising Bureau, European Advertising Standards Alliance
Where: UK, Brussels
When: 14 April 2011
Law stated as at: 6 June 2011
What happened:
The Internet Advertising Bureau (Europe) (IAB) and the European Advertising Standards Alliance (EASA) announced and released respectively their IAB Europe EU Framework for Online Behavioural Advertising and EASA Best Practice Recommendation on Online Behavioural Advertising.
The linked initiatives provide for a self-regulatory regime designed to give consumers greater transparency and control over Online Behavioural Advertising (OBA), thereby enabling businesses to comply with the requirements of the Privacy and Electronic Communications Directive (as now amended).
Signatories to the IAB Framework, who include the likes of Google, AudienceScience, Yahoo!, GroupM, Adconion, Microsoft and BBC Worldwide, are required to adhere to various principles as to disclosure, user choice over OBA, data security, sensitive segmentation, education and compliance and enforcement.
The Framework's requirements as to user notice are built around adoption of an "icon" that will appear in or in the frame around banner ads that are served using OBA. Users will be able to hyperlink via the icon to a consumer-focused portal at www.youronlinechoices.eu, that gives information about OBA and related data usage, as well as mechanisms to allow the user to opt out of particular OBA cookies.
Early reports suggested that the IAB's US icon – a stylised "i" in a triangle device – might be adopted in some but perhaps not all European countries, with some territories using their own icon. The Framework is not prescriptive. However, the technology to enable the icon to be supported in European advertising is not expected to be rolled out until later this year.
Alongside the IAB initiative, which requires self-certification and submission to independent audit, the EASA Best Practice Recommendation provides a regime for both signatories and non-signatories of the IAB Framework. It is intended that self-regulatory organisations within the EASA network (including in the UK the Advertising Standards Authority) will provide an independent route of recourse for consumers who may have complaints about OBA.
Why this matters:
The UK government stated in its April 2011 paper "Implementing the revised EU Electronic Communications Framework" that:
"The Government is pleased to support the industry-led work on the use of third party cookies in behavioural advertising and is satisfied that this meets the requirements of the revised Article 5(3). The European Commission has also endorsed this work. The Government believes that this work fully addresses one of the uses of cookies of most concern to users and is, therefore, a major component in the Government’s plans for meeting the requirement of the revised provisions."
Although ultimately it will be for the Information Commissioner's Office and the courts to decide whether particular compliance steps are adequate, the government's endorsement of the IAB and EASA approaches means they are likely to be a safe bet for ensuring that OBA activities meet regulatory requirements – in the UK at least.
The EASA initiative of course also means a further extension to the ASA's already substantial – and recently extended – remit. Where will it set its sights next, and just how far can it stretch its regulatory resources?
