Peeking into the Cookie Jar: The European Approach Towards the Regulation of Cookies
20 Pages Posted: 19 Oct 2015
Date Written: July 26, 2013
Article 5(3) of the ePrivacy Directive regulates the storing of information and the gaining of access to information that is already stored in the terminal equipment of users and subscribers, which applies to the handling of cookies. The Citizens’ Rights Directive amended this provision in the frame of the review of the European electronic communications legal framework in 2009. According to the new provision, the installation of and the access to cookies is allowed only with the consent of the user or the subscriber. The introduction of a requirement for consent has sparked a fiery debate with regard to the implementation of this provision, especially as regards the practical impact it may have on the currently used practices relating to cookies. This article will study the new requirements set out in Article 5(3) of the ePrivacy Directive, as well as the background leading to their adoption. It will further discuss how the consent of the user can be given in relation to cookies in a valid way, examining among others the suggestions of the Article 29 Working Party and the European Data Protection Supervisor, as well as the UK implementation of the provision.
Keywords: cookies; ePrivacy Directive; consent; right to refuse; opt-in
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