The E-Privacy Directive and EU Cookie Law. A cookie is a simple text file that is stored on a user’s computer or mobile device when visiting certain websites. It allows the website to remember the user’s actions or preferences over a period of time. They are used to identify users, remember preferences, and complete shopping tasks without having to re-enter information. They can also be used for online behavioral target advertising. The use of cookies has become ubiquitous to e-commerce. The Directive on Privacy and Electronic Communications (E-Privacy Directive) [Directive 2002/58/EC (2002) (Amendments 2009)] was enacted to protect “the right to privacy in the electronic communication sector” and seeks to harmonize the regulations in member states. It permits the use of cookies if the user is provided with clear and comprehensive information about the purpose of the cookie and the user is given a chance to opt-out. The 2009 amendments to the E-Privacy Directive forbid the placing of cookies without consent of the user. There has been much discussion about whether implied or express consent is required under the E-Privacy Directive or any of the member state laws governing cookies. As a result, some European websites have added a pop-up statement specific to cookies and requesting expressed consent or an “opt-in” from the user. In June 2012, European data protection authorities (as part of the Article 29 Working Party, composed of representatives of the DPA’s, the European Data Protection Supervisor, and the European commission) issued an opinion clarifying that consent might not be required in cases where cookies were only used to track user input when completing a shopping cart online (also known as session-id cookies) and that first party analytics were not likely to create a privacy risk if the website provided clear information about the cookies and their use with an easy opportunity to opt-out by the user. [See Article 29 Data Protection Working Party Opinion 04/2012 on Cookie Consent Exemption 00879/12/ EN (adopted June 7, 2012)].
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