GDPR & PECR – The impact on cookies and tracking

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While there is quite rightly a huge focus on GDPR and business preparation for it, there is another piece of legislation, which is closely related and plans to roll out a reform on 25^th May 2018; PECR (Privacy and Electronic Communications Regulations).

A first draft of the reforms was released in January 2017 and despite extensive lobbying, a report has now been agreed by the EU Civil Liberties Committee (LIBE). It commits to a direction for the regulation, but is still not finalised and will continue to be adapted.

Of specific interest to digital marketers, the legislation is putting in place clearer rules for tracking technology, including cookies which could have far-reaching consequences.

We’ve been debating heavily what the potential impact of substantial changes to tracking technology legislation could mean. This blog outlines my current view.

Consent to tracking

One of the most contentious parts of GDPR and PECR is that consent to tracking will need to be “freely given and unambiguous”. As we know, that is not the case for a majority of 3^rd party cookies which are currently in use.

What the legislation is also likely to do (thankfully) is prevent what everyone suffers from online, which is ‘pop-up’ fatigue, where users constantly get bombarded for approval to land cookies. These so called ‘cookie walls’ will no longer be allowed.

Control in browser

With the essential removal of cookie pop-ups, the current plan is that settings will be controlled at a browser level. This level of control will make it a lot easier for users to select global settings and potentially make it more straight forward to specifically allow tracking from only certain providers.

An interesting debate that highlights how successful this will be is how the options are surfaced in browsers, in practice. How will users be made aware of the options? How frequently will they be prompted to review them? These variables will all have a massive impact on how frequently people are willing to review which services they will provide “unambiguous allowances” to.

Apple

Apple’s approach is currently of specific interest to the industry. The latest version of Safari has a new tool within it which aggressively identifies, and blocks cookies used to track users across the web. It has started blocking Double Click and various other 3^rd party cookies such as retargeting providers.

This has already resulted in different industry solutions to get around what is essentially a black out in Safari users data. Double Click for example, has encouraged advertisers to ensure that Google Analytics is linked, which means Google can estimate the conversions using data from Analytics. Analytics is considered a 1^st party cookie and essential for business operations, so would never be impacted from such blocks, or included within PECR legislation.

Programmatic Display

With the impending block on 3^rd party cookies, this could put a serious dent in the amount of information which is currently collected on users with ‘explicit consent’ and therefore data which is available for targeting purposes within the display market.

If this was to happen, advertisers would harness even more data from providers who currently have the explicit consent required. This kind of data, which has a high level of recency, high reliability and is segmented with accuracy is predominantly provided by the big players; Facebook and Google. In the states Verizon and Comcast are also particularly interesting.

Google and Facebook

A lot of this legislation plays into the hands of Google and Facebook and presents far less of a problem for them. If anything, I believe it strengthens their market position. My view is that big players will always have data agreements with their users that are “freely given and unambiguous”. The sale of this user approved data for programmatic targeting purposes is therefore completely acceptable.

What next?

There is obviously a lot of lobbying which will continue to take place to ensure that the legislation is operational and doesn’t create a significant problem for an industry which currently contributes billions of dollars to the worldwide economy. We will be keeping a close eye on developments over the coming months so will update on any other major advancements.