by Doug


Internet Marketing

EU e-Privacy directive analysis

The EU chocolate chip conundrum explored.

The EU e-Privacy directive has left website owners and agencies in the UK and the EU faced with an unclear and potentially damaging situation with regards to their usage of cookies. As with the myriad potential outcomes of the new ruling, there is a long list of questions and interpretations of the directive that no one seems to be bold enough or indeed able to take a stand point on.

The advice from respected figures in the web analytics industry varies from ‘wait and see’ to ‘don’t wait and see but I’m not sure what you should do’ as can be seen in a non-exhaustive selection of recent blog posts:

Conspicuous by it’s absence is advice and guidance from the major Web Analytics vendors. Please take heed Google, Omniture, Yahoo, Webtrends and all other vendors of systems that are affected by this ruling – the UK and EU website owners and agencies need your support and advice. You have a responsibility to use your influential position to assist and guide the law makers to clarify and rationalise this situation.

Interestingly, Eric Schmidt from Google and Mark Zuckerberg from Facebook recently met with France’s President Sarkozy (–20110526) to discuss state regulation of internet usage…

“Schmidt went so far as to suggest that governments may implement “stupid” rules that slow the growth of the Internet.”
“‘Stupid’ rules” is tough talk – most internet practitioners will understand and appreciate the essence of the ruling. The implementation is the issue. The main questions can be summarised in this non-exhaustive list:

  • Are web analytics cookies okay?
  • Are A/B and MVT cookies okay?
  • Are basket cookies okay?
  • What about data capture cookies (think Kampyle, 4Q, MouseFlow and ClickTale)?

The point of the law is that you don’t have to ask the user’s permission to set cookies that are essential to your business. Someone needs to clearly define what cookies are essential for business though. Do website owners really need to capture anonymous aggregated web analytics data? Is this essential for the business? Anecdotally, when questioned on this subject by a major analytics vendor recently, France said Oui! The UK says ‘no chance guvnor‘. Other governments are yet to come down on either side of the fence.

What is clear is that agencies and site owners in the EU and UK are braced for a battle.
What should you do right now?
Here are a few simple things you can do now to be prepared for a range of eventual outcomes – you should be doing these things already:

  1. Ensure your privacy policy is up to scratch. Web Analytics vendors require you to state how and why you use cookies in you privacy policy. Make sure you privacy policy is easy to find and clearly states how and why you use cookies.
    A great example is the ICO privacy policy (if it’s good enough for the ICO…):
  2. Prepare a cookie audit document. You should know what systems set cookies and why. This includes all data capture systems – advertising, testing and web analytics to name but a few. See how the BBC are describing their cookie usage:

These are great examples of risk free, common sense, open and transparent disclosures that are at least in compliance with the essence of the e-Privacy directive.

You can do these things quickly, cheaply and easily without harming your conversion rate – indeed, if you’re not doing them already, you might actually see an increase!

A big point here is that this is only the start of the journey. These two points are clearly important but more actions can be expected in the next 12 months. Be prepared to act.


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