EU Cookies Directive & eCommerce Analytics

Article 66 of this set of directives, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:337:0011:0036:En:PDF, from the Official Journal of the European Union states that:

“Third parties may wish to store information on the equipment  of a user, or gain  access to information  already stored, for a number of purposes, ranging  from the legitimate  (such as certain  types of cookies)  to those involving unwarranted intrusion into the private sphere (such as spy­ware or viruses). It is therefore of paramount importance that users be provided with clear and comprehensive information when engaging in any activity which could result in such storage or gaining of access. The methods of providing information and offering the right to refuse should be as user-friendly as possible. Exceptions to the obligation to provide information and offer the right to refuse should be limited to those situations where the technical storage or access is strictly necessary for the legitimate purpose of enabling the use of a specific service explicitly requested by the subscriber or user. Where it is technically possible and effective, in accordance with the relevant provisions of Directive 95/46/EC, the user’s consent to processing may be expressed by using the appropriate settings of a browser or other application. The enforcement of these requirements should be made more effective by way of enhanced powers granted to the relevant national authorities.”

It’s not clear to me what “third parties” constitutes, but I assume it does not include the owner of the website the user is visiting. So Google Analytics / Ominiture Site Catalyst would count as a third party.

It’s possible you could interpret the use of an eCommerce site as a user explicitly requesting the service of browsing products for the purpose of purchasing. If you could, then the storage of analytics tags could be interpreted as being necessary to provide an effective browse and purchase experience through process of analysis and improvement. Then it might pass as being the “legitimate purpose of enabling the use of a specific service explicitly requested by the subscriber or user”. It does feel rather tenuous though.

This is all personal opinion and is not legal advice. Please seek somewhere else to pin the blame if you get taken to court for not asking your customers for permission to store cookies!

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2 Responses to EU Cookies Directive & eCommerce Analytics

  1. Steve H says:

    It remains to be seen how this is implemented in UK legislation, the current direction is that the Information Commissioner will be left to decide how best to regulate and I dont think any other member states have implemented either. You can well image each country doing its own thing and creating a nightmare out of this. Read in the context of the rest of the directives I would be more inclined to interpret this as only applying to personal data stored on a users machine, so would have thought anonymous session ids as generated by Omniture and the ilk would be a rather extreme interpretation, but I am sure there is a whole industry waiting to be made out of interpreting otherwise…

  2. SE says:

    I’m 99% certain that all this will mean is another line in every site’s signup TOC, or a few more words in the privacy statement (which will state amongst other things, that ‘advertising is a neccessary feature of this website, and is required to keep it funded’).

    Issues will possibly occur with small sites that run SEO. Worst case, turn off Google Analytics until they issue a statement that makes it ok again.

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