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Data Protection Concerns about European Online Advertising Code

The Article 29 Working Party (the “Working Party”) recently expressed fundamental concerns with the code of practice in relation to online behavioral advertising (the “Code”) of the European Advertising Standards Alliance (“EASA”) and the Internet Advertising Bureau Europe (“IAB”).

The Working Party (the grouping of EU Data Protection Commissioners) has subsequently met with the IAB/EASA to discuss the contents of the Code, entitled “the Best Practice Recommendation on Online Behavioral Advertising”. 

Among other matters the Code offers consumers guidance on how to object to the use of cookies for online behavioral advertising by directing consumers via an icon included in each targeted advertisement to a site which allows the cookies to be switched off.  The Working Party is concerned that the Code does not comply with the ePrivacy Directive requirement regarding obtaining prior consent to the use of cookies.

The Working Party emphasized aspects of its recent Opinion on the definition of consent in that “only statements or actions, not mere silence or inaction, constitute valid consent”.  The Chairman of the Working Party went further and cautioned companies not to rely on the Code for compliance purposes.

The Working Party is due to release an Opinion on the Code before the end of 2011 which will take account of any response received from the IAB/EASA to the comments of the Working Party to date. 

Submitted by Leo Moore and Brian McElligott