European Working Party Opinion On Exemptions To Cookie Consent

Author:Ms Ariel Fox
Profession:Foley & Lardner
 
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The Article 29 Data Protection Working Party has recently released an opinion on the EU Cookie Directive [http://ec.europa.eu/justice/data-protection/article-29/documentation/opinion-recommendation/files/2012/wp194_en.pdf].The Article 29 Working Party is an independent advisory body including members from the states' data protection authorities and the European Commission. While the Article 29 Working Party's guidance is not binding, it does provide a consensus opinion of the European data protection authorities, and the opinion is therefore highly instructive for companies operating in Europe.

In the opinion, the Working Group considers what types of cookies may be exempt from the consent requirement under the Directive. The Directive explicitly provides for two types of exceptions:

A. if the cookie is used "for the sole purpose of carrying out the transmission of a communication over an electronic communications network," or

B. if the cookie is "strictly necessary in order for the provider of an information society service explicitly requested by the subscriber or user to provide the service."

The opinion explains that Criterion A exceptions might occur when the sole purpose of the cookie is to route information over a network, to exchange data items in their intended order, or to detect transmission errors or data loss. Criterion B exceptions require that the cookie is necessary to provide specific functionality to the user and the functionality is one that the user has explicitly requested as part of its use of the information service.

The Working Group notes that in general, first party cookies, meaning those set by owners of the site the user is currently visiting, and cookies whose lifespan is directly proportional to their purpose, most likely session cookies, are more apt to fall into an exemption. However, the opinion counsels that it is necessary to understand the specific purpose and implementation of a cookie in order to understand whether it falls into an exemption under Criterion A or B. Additionally, multipurpose cookies must be considered under each of their purposes and uses.

The opinion provides certain examples of likely exempt cookies. Cookies likely to be exempt under Criterion A include load balancing cookies for the duration of the session (to allow processing of web server requests). Cookies likely to be exempt under Criterion B include: user input cookies for the duration of a session or for a few hours (such as cookies that allow...

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