Earlier this week, it was announced that “the Council of the European Union has approved new legislation that would require Web users to consent to Internet cookies”. The text of the legislation reads:
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 [underlining mine].
In essence, the new legislation proposes that no cookie is installed on the end user’s machine without his/her explicit consent which must be sought every time a cookie is about to be recorded.
This legislation is not yet signed into a law, but is expected to become one if signed within the next 18 months (implementation due: 04/26/2011).
Will the EU Law Bury Affiliate Marketing?
If such a legislation becomes a law, will it really bury affiliate marketing in Europe as some are already being afraid? I do not believe so. While the majority of present day affiliate marketing tracking solutions do rely on cookies, the industry’s existence does not have depend on them. There is a way to track affiliate-referred sales/leads via cookie-less solutions, and at least two European affiliate networks are already employing them (AffiliateFuture and Webgains). So, while the is little joy for affiliate marketers behind the newly proposed legislation, it is certainly not the end of the world.
Bigger Picture — Wider Implications
The real problem is that if this draft becomes a law, many other areas of online marketing will be automatically affected. To mention but a few scenarios, cookies are being extensively used for/in:
- Affiliate marketing
- Ad serving
- Personalization and optimization of user experience
- Shopping carts
- Web analytics
The implications are significantly wider than just the affiliate marketing. In fact, as suggested above, affiliate marketing does have alternative solutions on hand. Are there effective ways to deal with the possible complexities on the other fronts mentioned?
Related articles and discussions:
- Big Threat to Affiliate Marketing? (discussion)
- EU Adopts Law Requiring User Consent for Cookies
- EU Cookie Rule Passes, But Ad Impact Still Unclear
- EU Proposal Could Cripple Common Web Ad Practices
- Consent Will Be Required for Cookies in Europe (legal take)
- New EU Cookie Law Smacks Of Windows Vista’s Constant Nagging
- EU: No Cookies Without Consent. Will EU Affiliate Programs be Killed? (discussion in comments)