New EU Cookies Law, what are the rules?

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GDPR requirements cookie and tracking law

The cookie law.

Only a few topics have triggered so many reactions from the industry. You can no longer use cookies, no longer read browser details and no longer follow people without their permission.

Cookie Law in 2.5 minutes

The most frequently heard misunderstanding

The cookie law is about tracking cookies, so if you do not track peoples behavior (or otherwise process personal data) then there is nothing wrong. Nothing is less true. The cookie law is about every cookie, no matter what purpose. Only cookies that are “strictly necessary” for the service desired by the user fall outside this law. And given the purpose of the cookie law and the chosen wording of that piece from the law, it is very difficult to fall under this exception.

One type of cookies that are well on the rise, is the affiliate cookie. Affiliate cookies are used by Workathomefuture.com. When someone visits a site and is redirected from there to a web store where he buys something, the store can reward the owner of that site (the partner or affiliate) with a part of the purchase price. A cookie is placed at the affiliate site and read out at the online store, that the store knows who the affiliate was that this buyer made. Besides buying you can also be rewarded for making leads, people who are interested but do not buy anything yet.

These types of cookies require permission, even if it only identifies the affiliate and not the visitor himself. Just like the other tricks with which affiliates are recognized, such as codes in the URL or even the referrer header that is sent. The cookie law is slightly misleading as a name: it is not about cookies, it is about reading data from the visitor’s computer. And a referrer is just as much “data” as a cookie.

And no, this is completely unworkable because you do not really want to bother visitors with such questions. Try to explain what an affiliate is and how he works, to someone who just wants to read your article. I really would not know how this could be otherwise under the cookie law. Reading data is asking permission unless you really need that data to be able to send the data that the visitor asks for. And affiliate cookies are not necessary to get a web page on the screen or refer to a web store.

First party analytics cookies are not likely to create a privacy risk when they are strictly limited to the first time. Such safeguards are expected to include a user-friendly mechanism to opt-out from any data collection and comprehensive anonymization that are applied to other collected identifiable information such as IP addresses.

What does the new EU cookies law say:

Cookie law: rules and guidelines

Web visitors have to ask permission to place cookies. The cookie law makes an exception for cookies that are not privacy-sensitive. As for cookies to track visitors.

What are cookies?

Cookies are small text files that websites place on your computer, mobile phone or tablet.

No permission needed for analytical and functional cookies

For cookies that have little or no infringe on the privacy, no permission is required from the user. These are often cookies that make a website work better.

These elements include:

Analytical cookies

Websites which use analytical cookies to track visitor statistics for example. So they better understand the functioning of the website. Analytical cookies have little to no impact on your privacy.

In March 2015, the Telecommunication law has been amended. Now websites don’t need permission to place analytical cookies anymore.

Functional cookies

Functional cookies are needed to operate a service or shop. These include files that keep track of what’s in a shopping cart.

Tracking Cookies: Always requires permission

For the placing of cookies that infringe the privacy, websites have to inform visitors and ask for permission. Often it comes to ‘tracking’ cookies. These cookies keep individual surfing habits and inform profiles to enable targeted ads for example.

Besides the Telecommunication law, also, the Law on privacy could apply to these cookies. In this case, websites are not only placing the cookies, but they also process personal data.

Cookiewet and EU government websites

Government websites must also accept visitors who don’t consent to the placing of cookies.

Where does Google AdSense come in?

When you are not a European citizen, but you do have European visitors, you need to have this warning on your website.
Google Adsense is using Cookies to track and follow visitors. They also are collecting data. If you have Google Adsense and don’t follow the EU cookie rules you run the risk of Google closing your Adsense account.