Last week, the Dutch Data Protection Agency (DPA) surprised markets by releasing a statement which states that, websites using cookie walls are not compliant with the General Data protection regulation (GDPR). These walls demand a website visitor agree to have cookies placed that track their internet browsing for ad-targeting as the price of entry to the site.
The statement came after the DPA received multiple complaints from internet users who had grievances about their access to websites being blocked after refusing to accept the tracking cookies. Following the clarification on the cookie walls, the DPA said it has also already contacted the sites about which it received the most complaints, and has promised to ‘step-up’ its monitoring.
This news has come as a surprise to many markets, and it is important to emphasize that, at this stage, the scope of this statement seems to be limited to The Netherlands, and that many still question this particular interpretation given by the Dutch DPA.
More importantly still – this is very specific to ad-targeting and tracking cookies, and does not necessarily include cookies which are used for analytics and research purposes. Cookies used for research analytics purposes are currently exempted from obtaining consent in The Netherlands, and should not be misunderstood or mistakenly ‘lumped’ in, with ad-targeting and tracking cookies.
Furthermore, the law that regulates the requirement for placing cookies, the so-called ePrivacy Directive, is currently being revisited. One of its objectives is to clarify and simplify the rules around placing cookies, as well as its relationship with the GDPR. ESOMAR and its partner associations are therefore working hard to maintain an exemption for audience measurement that continues to enable website owners to understand their website traffic flows, actual media consumption, and thus enable fair and transparent subsidy allocation based on independent figures.
This accentuates the importance of ESOMAR’s ongoing advocacy efforts to try and secure a block exemption for audience measurement purposes. This is the use-case within the data, research, and insights sector where the use of cookies without consent is the most necessary for research purposes in accordance with our position statements issued within the Coalition for Audience measurement.
So far encouraging progress has been made but it is not yet a done deal by any measure.
