Cookies – Consent or Pay?

March 2024

UK and EU data protection regulators are grappling with the compliance of the so-called ‘consent or pay’ model, also known as ‘pay or okay’. Put simply, this model means accessing online content or services is dependent on users either consenting to being tracked for advertising purposes (using cookies or similar technologies), or paying for access without tracking and ads.

This model – and the varying approaches to it – raises questions about whether this can be fair, and whether consent can be ‘freely given’. But it also touches on far more than data protection. It speaks to acceptable business practices, competition models, consumer protection laws, accessible credible journalism and more.

Ad-funded online content and services

‘Consent or pay’ is one of a number of solutions intended to address issues surrounding online advertising and its use of cookies. None of them, it has to be said, are perfect.

This is all coming to a head as data protection regulators in Europe and the UK push for compliance with cookie laws (e.g. PECR in the UK). For example, the UK’s ICO says for the necessary consent to be valid website operators must make sure it’s as easy for people to ‘Reject all’ advertising cookies as it is to ‘Accept all’. More UK companies to be targeted for non-compliant cookies

This causes a problem. As increasing numbers click ‘Reject all’, advertising revenues will take a significant hit. And advertising matters. When a US Senator asked Mark Zuckerberg how Facebook remained free, he famously and simply answered; “We run ads”.

It’s a point that can be made more broadly – we’ve all enjoyed a vast amount of free online content and services because of personalised advertising. Lots of the content and services we routinely access online are ad-funded and rely on a large percentage of users accepting cookies to target these ads. It’s why we can waste time (or relax) playing online games for free.

Online content and service providers have to pay people to create content, run websites, create apps and so on. Commercial businesses also want to turn a profit. The balance lies between the quality, value and integrity of the content they offer, and the advertising revenues which can be gained by personalised advertising.

We’ve all been tracked and served adverts as we browse the internet. Personalised ads mean we have a better chance of being shown ads for products and services which match our interests and needs. Yes, some of this activity is annoying, trades on our habits and may sometimes even be downright harmful. That isn’t to say all of it is problematic; again, this is a question of balance. Regulators have to tread a delicate line between protecting end-users without hampering business from offering us fair products, content and services.

We may not want to be tracked, but online publishers and service providers can’t be expected to provide something for nothing. Businesses aren’t under any obligation to provide us with stuff completely for free.

Which brings us back to the concept of ‘consent or pay’. This concept hit the headlines last year when Meta introduced a payment option to users of Facebook and Instagram in the EU (not in the UK), offering an ad-free experience for a fee. This is currently the subject of complaints by consumer rights groups in Europe. Meanwhile the ‘consent or pay’ approach has been adopted by some of Germany’s major newspapers, and others.

Just pay

Another option is for all content to be put behind a pay wall. For example, in the UK you have to subscribe and pay to read online articles published by the Telegraph, The Times and the Spectator magazine. Often a limited number of free articles are provided before you have to pay.

Cookie free solutions

Other cookie-less ad solutions are being rapidly developed, such as contextual advertising. You can read more about the options here: Life after cookies

But with solutions which don’t use third-party tracking cookies still in their infancy, and concerns they won’t be able to produce the same return on investment as cookie-driven advertising, there’s a need to plug the funding gap fast.

‘Consent or pay’ – compliant or not compliant?

In the UK, the ICO hasn’t decreed whether ‘consent or pay’ is a fair approach or not. It’s asked for feedback, and in doing so set out its initial ‘view’.

While stating UK data protection law doesn’t prohibit ‘consent or pay’, the Regulator says organisations must focus on people’s interests, rights and freedoms, making sure people are fully aware of their options in order to make free and informed choices. It’s worth noting that in the EU, ‘consent or pay’ is not prohibited either.

The ICO has set out four areas which need to be addressed when adopting this model, and has asked for feedback on any other factors which should be taken into account.

1. Imbalance of power

The ICO says consent for advertising will not be freely given in situations where people have little or no choice about whether to use a service or not. This could be where the provider is a public service or has a ‘position of market power’.

2. Equivalence of services

If the ad-free service bundles in other additional ‘premium’ extras, this could affect the validity of consent for the ad-funded service.

3. Appropriate fee

Consent for targeted advertising is, in the ICO’s view, unlikely to be freely given if the alternative is an “unreasonably high fee”. The Regulator is suggesting the fee should be set at a level which gives people a realistic choice between the options.

4. Privacy by design

Any consent request choices should be presented equally and fairly. The ICO says people should be given clear, understandable information about each option. Consent for advertising is unlikely to be freely given if people don’t understand how their personal information is going to be used.

Another key consideration is how people can exercise their right to withdraw their consent. The ICO reiterates it must be as easy for people to withdraw their consent as it is to give it. Organisations also need to make sure users can withdraw their consent without detriment. This may be a tricky circle to square.

In all of this there’s an important point – whilst consent must be ‘freely given’ under EU/UK data protection law, this doesn’t translate into meaning people must get content and services free too. The ‘consent or pay’ model, essentially offers a choice between pay with your data, or pay with your money.

Etienne Drouard is a Partner at Hogan Lovells (Paris) and his view is; “The very nature of consent is being offered an informed choice. ‘Pay or OK’ ( ‘Pay or Consent’) is, per se, a valid alternative. It requires a case-by-case and multi-disciplinary analysis. Not a ban.”

Have your say – UK ICO Call for Feedback on Consent or Pay

Time to plan ahead

Fedelma Good, Data Protection and ePrivacy Consultant, and former board member of the UK Data & Marketing Association, urges advertisers and publishers to plan ahead; “To say that online advertising is entering a period of turmoil is putting it mildly. Combining the issues of ‘consent or pay’ with Google’s cookie deprecation plans and you have an environment of uncertainty which advertisers and publishers alike will ignore at their peril. My advice to anyone reading this article is not only to track developments in these areas carefully, but perhaps more importantly to make sure you understand your own circumstances and options and plan ahead.”

Privacy and consumer rights groups

It’s clear privacy and consumer rights groups are pushing for change. Back in 2021 cookie banners were the focus, with the privacy rights group firing off hundreds of complaints to companies for using ‘unlawful banners’. The group developed software to recognise various types of unlawful banners and automatically generate complaints.

Max Schrems, Chair of noyb said: “A whole industry of consultants and designers develop crazy click labyrinths to ensure imaginary consent rates. Frustrating people into clicking ‘okay’ is a clear violation of the GDPR’s principles. Under the law, companies must facilitate users to express their choice and design systems fairly. Companies openly admit that only 3% of all users actually want to accept cookies, but more than 90% can be nudged into clicking the ‘agree’ button.”

Now the attention has turned to ‘consent or pay’, Meta’s use of this model has led to eight consumer rights groups filing complaints with different data European data protection authorities. The claims focus on concerns Meta makes it impossible for consumer to know how the processing changes if they choose one option or another. It’s argued the choice given is meaningless.

The fundamental right to conduct business

There’s a complex balance here between people’s fundamental privacy rights and the fundamental right to conduct business. For publishers and other online services, advertising is a crucial element of conducting business. In the distant past, advertising was expensive.

As Sachiko Scheuing European Privacy Officer at Acxiom & Co Chairwoman, FEDMA succinctly puts it; “Advertising used to be a privilege enjoyed by huge brands. Personalised advertisement democratised advertising to SMEs and start-ups.”

The growth of the internet and the advent of personalised advertising technologies has undoubtedly made digital advertising affordable and effective for smaller businesses and not-for-profits.

Well-established brands are more likely to be able to put up a paywall. People already trust their content, or enjoy their service and are prepared to pay. There’s a risk lesser-known brands and start-ups won’t be able to compete.

Is credible journalism under threat?

A Data Protection Officer at one premium UK publisher, who wishes to remain anonymous, fears the drive for cookie compliance risks damaging the ability to produce high quality journalism.

“In the face of unprecedented industry challenges, as more content is consumed on social media platforms, the vital ad revenues that support public interest journalism are under threat from cookie compliance, of all things. It seems like data regulators either don’t understand, or don’t care, about the damage they’re already inflicting on the news media’s ability to invest in journalism.

If publishers comply and implement “reject all” they lose ad revenue through decimated consent rates. If they fight their corner, they face enforcement action. Either way, publishers are emptying already dwindling coffers on legal fees, or buying novel consent or pay solutions.

Unless legislative change comes quickly, or the regulators realise that cookie compliance should not be an enforcement priority, local and national publishers may disappear, just at a time when trusted sources of news have never been more needed.”

Broader societal considerations

There’s a risk as more content hides behind paywalls, we’ll create a world where only those who can afford to pay will be able to access quality, trustworthy content.

‘Consent or Pay’ may be far from perfect, but it does allow people who can’t afford to pay to have equal access to content and online services. Albeit they get tracked, and those who have money to spend can choose to pay and go ad-free.

If the consent or pay model fails, and cookie-less solutions fail to deliver a credible alternative, I fear more decent journalism will go completely behind pay walls . If that’s the only option to plug the funding gap.

I am in my mid-50s and can afford to pay. My son, in his late teens, can’t. I worry poor quality journalism, fake news and AI-generated dross might soon be all he and his generation will be able to access. That’s not to say there isn’t some great user-generated content out there. But it does mean having difficult and honest conversations about regulation and the right of businesses to make a profit in an age of politicised, fraudulent and bogus online content.

Life after cookies

March 2024

“The past is a different country: they do things differently there”.

I’m pretty certain when LP Hartley wrote this wistful line the changing world of advertising, data and privacy weren’t foremost in his mind. However, in five years from now, when all the current arguments surrounding the elimination of third-party cookies are long gone, that’s likely how we’ll view the universal use (and abuse) of a simple text file and the data it unlocked.

From one perspective, life after third-party cookies is very simple.

The majority of media is transacted without third party cookies already. Whether by media type, first-party user preferences, device or regulatory mandates, lots of money already moves around without reference to third-party cookies. As the saying goes “The future is already here, it’s just not very evenly distributed”.

That’s deliberately rather glib. Some sections of the media still rely upon third-party cookies and not every media owner has an obvious opportunity to build a first-party relationship with consumers. The advantages of an identifier that allows streamlining of experience for consumers whilst delivering audience targeting and optimisation for media owners and advertisers haven’t gone away.

When we look to life after third-party cookies, we need to understand the ways replacement identifiers have evolved to ameliorate the worst aspects of cookies, whilst leaving some advantages in place. One leader I interviewed on this topic back in 2020 said “It’s not the fault of the cookie, it’s what you did with the data” and that’s a useful measure to have in mind when looking at any alternative solutions.

Put very simply, the choices for a brand post the third-party cookie are:

  • Use a different identity approach
  • Buy into use of a walled/fenced garden toolset
  • Use another signal to match between media and audience that isn’t anchored directly to the user, such as contextual.

Alternative identity solutions

The advantage of these is they come with some aspect of permissioning and consumer controls – after the cookie arguments and much legislation in the UK, Europe and US, the industry has learnt these tools are critical. However, it remains a moot point as to whether consumers have much knowledge around any consent or legitimate interest options that are put in front of them – the ICO in the UK is currently clamping down on consent practices. More cookie action

Equally moot is whether the majority of consumers are really that bothered. Much consent gathering is viewed by both parties as an unwanted hurdle in a customer journey. The basic requirements for a consumer to know who has their data, for what purposes and for how long remain, but how to achieve the requisite communication and control is still work in progress.

On a global scale these identity solutions revolve either around a “daisy chain,” using hashed email as the ID link, or use a combination of signals from a device with other attributes to have some certainty around individual identity. Any linkage built with a single identity variable risks being fractured by a single consent withdrawal.

The solutions built on a combination of signals have potentially more durability because they are less dependent on any single signal as the anchor of their fidelity, but many device signals are controlled by browser or operating system vendors, who may obscure or withdraw access to these as Apple has done in recent years.

Walled garden toolset

Much discussion is made around Google’s Privacy Sandbox initiative. This is the ambition from Google to deliver some of the advantages of third-party cookies within the Chrome browser whilst not revealing individual data.

It’s been a much longer journey than envisaged at the start when Google first made their announcement in 2020. Google’s commitment, made under the shadow of the Digital Markets Act, has been that they will not remove third-party cookies from the Chrome ecosystem until the UK competition regulator, the CMA, has approved their plans.

As of March 2024, those closely following the travails of Google, the CMA and the opinions tabled from the IAB Tech Lab (amongst others) would be hard pressed to give a cast iron opinion that the current timescale will be met. Privacy and competitive advantage have become inextricably intertwined in these arguments, which is fair. However, slicing through this Gordian Knot was probably not on the CMA or Google’s agenda when they signed up to this process. But that’s about timing, not a permanent stay of execution for the third-party cookie.

Non-user signals

The final approach is to use tools that do not rely on individual level signals. What an individual reads or consumes online says much about them – more than a century of classified advertising is testament to this.

The contextual solutions of 2024 are faster, smarter and better integrated than ever before. They have their downsides – closed loop measurement is a significant challenge hampering some of the campaign optimisations that became common place in the ear of the third-party cookie. And they became common place because they were easy and universal, however, paraphrasing the aphorism, what is measured came to matter, when it should really be the other way round.

And here we come into the greatest change that is being ushered in by the gradual demise of third-party cookies. Measuring what actually matters.

In the late 2010’s when cookies were centre stage as the de facto identifier of choice in media and advertising, their invisible synchronisation gave almost universal, if imperfect, coverage. One simple solution, accessible to all.

As we enter 2024, many alternative identifiers struggle to get much beyond 30% coverage. Contextual solutions can deliver 100% coverage but have their own measurement challenges. This has driven a greater interest in a combination of broad business- and commercial objective-based approaches such as Marketing Mix Modelling (MMM) and attribution-based metrics where appropriate. Advances in data management and analysis have enabled MMM to deliver more frequent insights than the traditional annual deep dive, making it a core component for post cookie media management.

Underpinning any and all of these solutions is the need for first-party data. Whether to build models for customer targeting, collaborate with media and other partners to access first-party data assets or measure more efficiently and effectively, having a structured, accessible and usable set of tools around first-party data is critical to working in the current landscape of solutions.

The growth of cloud storage solutions takes some of the burden away from making this a reality, but the applications used to understand and activate that data asset are many and various. Taking time and advice to build understanding in this area is a knowledge base critical to prospering after the third-part cookie.

Life beyond the third-party cookie is far from fully defined.

Some of the longer-term privacy and competition elements are not that hard to envisage, but exactly how the next 24 months plays out is much, much harder to predict. It’s still really work in progress, especially around measurement and optimisation. For the user of data in advertising and marketing it’s essentially “back to basics”.

Your customer data is more valuable than anyone else’s, so capture and hold it carefully. Test many things in a structured way because the future is about combinations. And know what matters to your business and work out how to measure it properly, not just easily.

More UK companies to be targeted for non-compliant cookies

February 2024

How to get to grips with your cookies and similar technologies

If you haven’t done it already, now’s the time to get your cookies in order!

Following warnings issued to companies operating some of the UK’s most popular websites in November last year, the ICO says more warning letters will be issued to others for non-compliant cookies.

53 of the UK’s top websites receives letters warning them they faced ICO enforcement action if they did not make changes in relation to their advertising cookies.

The ICO says as a result 38 have changed their cookie banners to be compliant, 4 have committed to reach a compliant position soon, and several others are working to develop alternative solutions.

The regulator says; “We will not stop with the top 100 websites. We are already preparing to write to the next 100 – and the 100 after that.” An AI solution is being developed to help the ICO identify website using non-compliant cookie banners.

What is the ICO’s key concern

The focus is on meeting the requirement to give users a fair choice over whether they are tracked for advertising purposes. The ICO is stressing organisations must make it as easy for users to ‘reject all’ as it is to ‘accept all’. To be clear, websites can still display adverts when users reject tracking, just not ones which are tailored to the person’s browsing habits.

Our 5 steps for compliant cookies

So, how can we make sure we’re following the rules when we deploy cookies and other similar technologies? Here are some straight-forward steps to take:

1. Audit: Do a cookie audit. If you don’t know what cookies your website is using you can’t even start to be compliant. Run a diagnostic scan to discover exactly what cookies and similar technologies are currently deployed on your website(s). Establish what they are being used for and which are provided by third party providers and involve the sharing of data with the third party (for example Google, Meta, etc).

2. Spring clean: Get rid of the cookies you no longer need. This might sound obvious, but you’d be surprised how often we find long-forgotten cookies lurking on websites, serving no purpose. You might need to check with your colleagues which are still used.

3. Categorise: Categorise your cookies – what are they used for?

  • Strictly necessary (essential) cookies – these are vital for the website to operate. For example, a cookie which helps keep the website secure, or a cookie which allows items to be added to a cart in an online store.
  • Analytics/Statistics/Performance cookies – for example, cookies which allow you to monitor and improve the site performance.
  • Functional cookies – cookies which enable a site to remember user preferences and settings, to enhance their experience on your website.
  • Advertising/Targeting cookies – allowing visitors to be followed from one website to another so tailored advertising can be displayed, or to target the most relevant advertising on your own website.

4. Collect consent: The law tells us you need to collect consent for all cookies and similar technologies which are not ‘strictly necessary’ before cookies are dropped onto the users device. To achieve this, you may wish to select a specialist Consent Management Platform to handle notifications and consents for you, as a website ‘plug in’.

There are many CMPs on the market, some of which are free. Beware that not all of them meet the UK/EU cookie requirements, so care is required when selecting the right one. If you use sub-domains on your website, deploy a high number of cookies or you want to exercise some creativity with how it looks, your likely to need a paid solution.

5. Notify website users: Provide a clear notification about the cookies and similar technologies you deploy. This should include:

  • the cookies you intend to use;
  • the purposes they will be used for
  • any third parties who may also process information stored in or accessed from the user’s device; and
  • the duration of any cookies you wish to set.

There are two approaches to this. You can let the CMP handle both the notification (pop-up) and the provision of more detailed information about cookies, or you can use the CMP for the pop-up and provide a separate more detailed cookie notice.

What are cookies and similar technologies?

Cookies are small pieces of information, which are used when users visit websites. The user’s software (for example, their web browser) can store cookies and send them back to the website the next time they visits.

The cookie rules also apply to any other technologies which stores or accesses information on a user’s device. For example, similar technologies could include, web beacons, scripts, tracking pixels and plugins.

What the law says

Contrary to what we often read in the papers, GDPR does not give us the rules for cookies and similar technologies. In the UK the rules are set out in the Privacy and Electronic Communications Regulations (PECR) which are derived from the EU ePrivacy Directive. The specific requirements can vary by country, so think about which countries your site users visit from.

In simple terms, you can’t ‘drop’ a file on a user’s device or gain access to information stored on their device unless:

a) You have provided clear and comprehensive information about your purposes for doing this, and
b) You have collected the consent of the user.

There is an exemption for strictly necessary cookies only. The cookie rules apply regardless of whether you’re processing personal data or not, i.e. these rule also apply to the automated collection of anonymised data.

Some points worth noting from ICO guidance

  • Consent needs to meet the requirements under GDPR for it to be a specific, informed, indication of someone’s wishes given by a clear affirmative action.
  • You must inform users about what cookies you use and what they do before they give their consent.
  • Where third-party cookies are used, you must clearly and specifically name who these third parties are and what they will do with the information collected.
  • Users must be given control over non-essential cookies, and should be able to continue to use your website if they don’t give consent.

It’s worth noting the ICO has determined analytics cookies are NOT essential and require consent. However, this is not always the case in other European countries. For example, the French regulator CNIL does not mandate the collection of consent for analytics cookies. They consider these cookies can be used under Legitimate Interests, which means they still require websites to notify users and give them the opportunity to object (opt-out).

The future and alternative solutions for cookies

In both the UK and in the European Union there’s a concerted desire to simplify the rules and remove the necessity for everyone to be faced with a barrage of cookie pop-ups on every website they visit. As yet however, a suitable solution has not been agreed.

The UK’s Data Protection and Digital Information Bill which is currently progressing through Parliament includes provision to expand the types of cookies which wouldn’t require consent. For example, the exemption from consent could extend to analytics cookies – although you’d still need to notify users and give them an option to object.

Meanwhile, many believe it’s only a matter of time before the use of third-party data cookies becomes obsolete, due to the inherent difficulties in collecting valid consent. It’s highly likely there will be a premium on first party data, collected compliantly and transparently from customers or prospects.

Instead of using third-party cookies to help target advertising, there are a growing number of contextual advertising solutions, which are less intrusive, and a growing interest in more privacy friend Edge Computing Solutions.

Others are moving to a subscription model where users pay to access ad-free content, or are using a combination of this and contextual advertising.

Several organisations who received warning letters from the ICO late last year, are working on developing alternative solutions. The ICO says it will share more detail on how this models can be compliantly implemented next month.

Google Analytics: GA4 vs Universal Analytics – What will change?

July 2022

Will GA4 improve compliance?

For any users of Google Analytics, you will have started to see some messaging warning that the Universal Analytics tools will be retired in 2023 and that now is the time to migrate across to Google Analytics 4.

 What is Google Analytics 4 (GA4)? 

GA4 is a new property that helps analyse the performance of your website and app traffic and will replace Universal Google Analytics. It was first released in October 2020 although it’s only now that the campaign to migrate across has started in earnest. 

 Key components include: 

  • Event-based tracking: Universal Analytics is session-based, while GA4 is event–based. In other words, the ability to track events like button clicks, video plays, and more is built in with GA4, while this requires advanced setups in UA. This comes from the premise that page views aren’t the sole important metric.
  • Cross-device tracking: UA was built around desktop web traffic, while GA4 gives businesses visibility into the customer journeys across all of their website and apps.
  • Machine learning: GA4 uses machine learning technology to share insights and make predictions.
  • Privacy-friendly: UA data relies heavily on cookies, GA 4 does not.

Crucially, on July 1, 2023, standard Universal Analytics properties (the previous version of Google analytics) will no longer process data. You’ll be able to see your Universal Analytics reports for a period of time after July 1, 2023. This means that to have a continuous history of activity, it makes sense to move across to the new GA4 platform sooner rather than later. 

What privacy improvements have been made?

GA4 came with a set of new privacy-focused features for ticking GDPR boxes including: 

  • Data deletion mechanism. Users can now request to surgically extract certain data from the Analytics servers via a new interface. 
  • Shorter data retention period. You can now shorten the default retention period to 2 months (instead of 14 months) or add a custom limit.  
  • IP Anonymisation. GA4 doesn’t log or store IP addresses by default. They allocate an anonymous and unique user id to each record
  • First-party data cookies. Google uses first-party cookies which means they’ll still be supported by browsers
  • More data sampling. Google is doing more data sampling using AI to gain more granular analytics insights – this is more privacy friendly and uses models to investigate deeper insights
  • Consent mode. The behaviour of Google tags is managed based on user consent choices. 
  • Collecting PII. Google does not allow the collection of PII in GA4 –  this is considered a violation of Googles terms of service
  • Data sharing with other Google Products. Any linking to Google advertising products requires explicit opt-in consent and a prominent section on the privacy notice 

Is Google now compliant?

Possibly in limited circumstances. If Google anonymises the data by allocating a user id that is never referenced with any other data then we can argue the data is anonymous and therefore not subject to GDPR regulation.

In some instances, this may be the case if you are doing simple tracking and effectively treat your digital platforms as an ivory tower. In most instances, it is not!

If you are advertising and can then link the id to other data, there is the potential to identify individuals and therefore the information becomes personal data and subject to GDPR.

This means that all the usual user consent rules apply and opt-in consent is required to analyse activity.

The major difficulty for Google is that data is exported to the US where it is deemed, by the EU, that Google does not adequately protect EU personal data from US surveillance rules. 

Previously, Google relied on the Privacy Shield framework to ensure that it remained compliant. Since that has been invalidated in 2020, Google has struggled to achieve compliance and has faced a number of fines.          

In particular, Google Analytics does not have a way for:

·       Ensuring data storage within the EU

·       Choosing a preferred regional storage site

·       Notifying users of the location of their data storage and any data transfers outside of the EU

What next?

Ideally, Privacy Shield 2.0 will be introduced soon! Talks have started but they’re unlikely to be swift! The US government has been talking about making its surveillance standards “proportional” to those in place in the EU. This may not be good enough for CJEU. 

In the meantime, implement GA4 as it is more privacy-focused than Google Universal Analytics and hope that US and EU come to an agreement soon. There is a risk in using GA4 and you might want to consider using other solutions.

Google’s FLoCs are dead, long live Topics (for now)

February 2022

How does the introduction Topics change advertising targeting?

The story so far

Google has been working on a solution to replace third-party cookies for advertising for some time. Although other browsers such as Mozilla Firefox and Safari have deprecated the use of third-party cookies a while ago, Google only made its announcement in 2019. 

Meanwhile, and with some fanfare, they came up with the idea of FLoCs – Federated Learning of Cohorts. Available details on what this involved were limited but in essence, Google was going to use algorithms to categorise data about individual users browsing patterns to create a range of interest-based groups which could be used for targeting. 

What happened next? 

Things did not progress as rapidly as expected. There were a series of delays and hold-ups with many speculating about the cause: 

  1. Many parties including major publishers were concerned about the conflict of interest and the fact that Google was still harvesting vast quantities of data. 
  2. Various anti-trust bodies including The Competitions and Markets Authority in the UK got involved and determined that FLoCs were potentially anti-competitive. 
  3. The Data Protection community in many territories expressed concern about FLoCs for being too intrusive and non-compliant. 

In Summer 2021, Google announced a delay to the launch of FLoCs. Not only did this cast doubt over it’s future but it also provided a stay of execution for those who were still reliant on third-party cookies for their targeting. There ensued a period of silence for 6 months.

Parallel technology developments for advertisers

Over the last few years, a number of alternative solutions have emerged which take advantage of recent technology to allow personal data to stay on your device rather than be collected centrally. 

In parallel, contextual advertising solutions are being adopted that are focussed on context and interest. A notable, but not only, example is Permutive which uses context to create advertising target audiences and has been introduced by a series of major publishers. 

The advent of Topics by Google

Eventually, in January 2022, Google announced Topics, and guess what? It’s using edge computing techniques as well as focusing targeting efforts on context. 

Does this mean that Google is just catching up with some of the more innovative organisations? Have Google decided that they wish to be more respectful of privacy concerns? Have they decided to walk away from the face-off with anti-competition bodies across USA and Europe? 

What does Topics do?

To quote Google extensively:

“With Topics, your browser determines a handful of topics, like “Fitness” or “Travel & Transportation,” that represent your top interests for that week based on your browsing history. 

Topics are kept for only three weeks and old topics are deleted. Topics are selected entirely on your device without involving any external servers, including Google servers. When you visit a participating site, Topics picks just three topics, one topic from each of the past three weeks, to share with the site and its advertising partners. 

Topics enables browsers to give you meaningful transparency and control over this data, and in Chrome, we’re building user controls that let you see the topics, remove any you don’t like or disable the feature completely.”

How does this differ from FLoCs?

Superficially it appears that Topics allows for meaningful transparency and control of personal data whilst serving ads that are based on your browsing interests: 

  1. Topics share far less data about the user – it simply shares an interest in topics
  2. No data is stored centrally – the targeting occurs in the browser when you visit sites 
  3. The user can curate the topics that are used for targeting 
  4. Topics provide the user with more clarity over how their data is being used through the browser settings
  5. Data is deleted after 3 weeks rather than retained 

What does it mean for advertisers? 

If Topics does see the light of day, this is a major change in the way that Google is approaching the targeting of advertising with a significant shift towards a privacy-friendly solution with a continuing focus on interests. If no investigations have been carried out by advertisers into using context as a basis for targeting, now seems like a good time to get started. 

Practically, the deadline for deprecating third-party cookies on Chrome is late 2023. This deadline may or may not move. Google will need the time to ensure that this alternative is well tested and is successful for targeting. 

Successfully leveraging contextual advertising? 

Successful contextual advertising relies on using your compliantly collected first-party data to create segments and profiles. These can then be used to target new prospects using context as the basis for targeting rather than behaviour. Such solutions often rely on data remaining on an individual’s device until the point when they start to consume relevant content – known as edge computing. Back to the future for some of us old enough to remember media buying without any technology!

Google Analytics Processing Data in US – is this a problem?

January 2022

Austrian DPA has found that continuous use of Google Analytics violates GDPR

Once again, Google is under fire from a regulator in Europe. This time in Austria. 

The Centre for Digital Rights (noyb), which is based in Austria and led by Max Schrems, filed 101 model complaints following the Schrems II decision in 2020. 

Following the complaint about Google Analytics, the Austrian regulator has determined that the continuous use of Google Analytics violates GDPR: 

“The Austrian Data Protection Authority (DSB) has decided on a model case by noyb that the continuous use of Google Analytics violates the GDPR. This is the first decision on the 101 model complaints filed by noyb  in the wake of the so-called “Schrems II” decision. In 2020, the Court of Justice (CJEU) decided that the use of US providers violates the GDPR, as US surveillance laws require US providers like Google or Facebook to provide personal details to US authorities. Similar decisions are expected in other EU member states, as regulators have cooperated on these cases in an EDPB “task force”. It seems the Austrian DSB decision is the first to be issued.”  Source noyb

What does Google Analytics do?

Google Analytics operates by using cookies to capture information about website visitors. Google Analytics is free to use and it’s ideal for businesses who want to know more about:

  • Who visits their website
  • How their website is used
  • What’s popular on their website, and what’s not
  • Whether visitors return to their website

What information does Google capture?

You are likely to see a range of Google cookies that do different jobs. Here’s a short list showing some possible cookies that might be used:

  • _ga: Used to distinguish users and retained for 2 years
  • _gtd: used to distinguish users and retained for 24 hours
  • _gat: Used to throttle request rate and retained for 1 minute
  • AMP_TOKEN: Contains a token that can be used to retrieve a Client ID from AMP Client ID service and retained from 30 seconds to 1 year
  • _gac_<property-id>: Contains campaign related data for the user. This is used when Google Analytics and Google Ads are connected and retained for 90 days

These cookies range from simple identification to remarketing and advertising cookies which allows you to track and remarket individuals through Google Ads. The more one strays into using this data for remarketing, the more intrusive the data capture becomes. 

What does this mean in reality?

Since the advent of GDPR, the burden to demonstrate that consent has been freely given has become greater. 

In the UK, when the ICO published their cookie (and other technologies) guidance in 2019, many large websites became instantly non-compliant. The requirement to demonstrate that consent had been freely given had become stronger. 

The ICO also clearly highlighted that Performance Cookies (such as Google Analytics) required consent to be used. 

Since 2019, companies have used a variety of methods to notify users about the existence of Google Analytics cookies. Some compliant, some less so. 

It is also clear that many have taken a risk-based approach to what they should do. The ICO’s own guidance provides a level of ambiguity on the topic:

The ICO cannot exclude the possibility of formal action in any area. However, it is unlikely that priority for any formal action would be given to uses of cookies where there is a low level of intrusiveness and low risk of harm to individuals. The ICO will consider whether you can demonstrate that you have done everything you can to clearly inform users about the cookies in question and to provide them with clear details of how to make choices. Source: ICO

What are the issues?

  1. Google is a data processor unless you enable data sharing with Google Ads at which point you become a shared controller – ensuring that your privacy policies reflect these differing relationships is important. 
  2. Google stores most data in USA – since Privacy Shield became illegal this has presented some problems. Google is relying on SCC’s but the main concern is that the US has surveillance laws that require companies such as Google to provide US Intelligence agencies with access to their data. 
  3. Google does use data to improve their services. For a user, this can sometimes seem creepy. 

What could Google or US government do?

A rather obvious solution would be for Google to move the processing of EU data outside the US to server centres in Europe where the US government cannot exercise the same surveillance rights as in the US. 

Alternatively, the US government could introduce better protection for private citizens. Although this was unthinkable under the previous presidential regime, it may be conceivable under Biden/Harris. It still feels like a long shot. 

Realistically it’s quicker and more realistic for the Google’s of this world to set up data centres in Europe. Saas providers such as Salesforce addressed this issue years ago and it feels like it’s about time Google and Facebook did too. 

What should you do? 

  1. Make sure you have correctly set up your cookie banner on your website. Technically, visitors should opt-in to Google Analytics and this permission should be captured before any processing takes place
  2. Provide a clear explanation of what data you are collecting and what that data is used for in an accessible cookie notice supported by a coherent privacy policy. 
  3. Make sure you describe all the Google cookies you are using – from simple tracking through to remarketing and advertising. Ideally each cookie would be included including the technical details, duration and purpose.
  4. If you use Google Analytics a number of settings have been introduced that help protect privacy:
    • Turn on the IP anonymising tool. It removes the last three characters of the IP address and renders the address meaningless. 
    • Make use of the data deletion tool – this is a bulk delete tool and can’t be used for one user
    • Introduce data retention policies – there is a default setting of 26 months before data is deleted but maybe you can delete data sooner. 
    • Consider the use of alternative tracking tools that do not rely on the use of cookies or transferring data overseas. A quick search resulted in a non-exhaustive list of analytics tools that don’t rely on cookies. There will be other suppliers: 
      • Fathom
      • Plausible
      • Simple Analytics
      • Insights
      • Matomo

In conclusion

  • At the moment, this finding by Austrian DPA does not apply in the UK. However it’s possible other DPAs may follow suit. 
  • Having said that, there are plenty of lessons to learn about how to work with Google Analytics and other US-based companies who insist on holding data in the US
  • It’s essential that your cookie notice and privacy policy clearly set out what tools are being used and what data is being processed. This is particularly important if you are linking Google Analytics to Google Ads for remarketing. 
  • Given that the world is slowly turning against cookies, maybe now is the time to start looking at less intrusive performance tracking solutions. 


ICO Opinion on Ad Tech – Old wine in a new bottle?

December 2021

Does the ICO Opinion piece tell us anything new?

The ICO has published an “Opinion” which can be interpreted as a shot across the bows for any Ad Tech company who is planning to launch their new targeting solutions for the post-third-party cookie world. 

If these companies thought new targeting solutions would get waved through because they don’t involve third-party cookies, it’s clear that Google’s difficulties with their Sandbox solution say otherwise. 

Google is currently knee-deep in discussions with both Competition and Marketing Authority (CMA) and ICO to come up with a targeting solution that is fair to consumers whilst also avoiding the accusation of being anti-competitive. 

In the ICO’s opinion piece they set out the clear parameters for developing these solutions in a privacy-friendly manner. You won’t be too surprised to hear all the usual concerns being re-heated in this discussion. To quote the ICO:

  1. Engineer data protection requirements by default into the design of the initiative
  2. Offer users the choice of receiving adverts without tracking, profiling, or targeting based on personal data. 
  3. Be transparent about how and why personal data is processed across the ecosystem and who is responsible for that processing
  4. Articulate the specific purposes for processing personal data and demonstrate how this is fair, lawful, and transparent
  5. Address existing privacy risks and mitigate any new privacy risks that the proposals introduce

This opinion piece is the latest publication from the ICO in a relatively long-running piece of work on the use of cookies and similar technologies for the processing of personal data in online advertising. In their original report in 2019, the ICO reported a wide range of concerns with the following which needed to be rectified:

  • Legal requirements on cookie use;
  • Lawfulness, fairness, and transparency;
  • Security;
  • Controllership arrangements;
  • Data retention;
  • Risk assessments; and
  • Application of data protection by design principles. 

You can read the back story here

The state of play in 2021

Since the ICO has started its investigations in 2019, the market has continued to develop new ways of targeting advertising that does not rely on third-party cookies. The net result is that the world has moved to a less intrusive way of tracking which has been welcomed by ICO. Some examples include: 

  • With Google Chrome’s announcement re: cookies, there is an expectation that third-party cookies will be phased out by end of 2022. 
  • There have been increases in the transparency of online tracking – notably Apple’s “App Tracking Transparency” ATT
  • There are new mechanisms being developed to help individuals indicate their privacy preferences simply and effectively
  • Browser developers are introducing tracking prevention in their software.  A notable example is the Google Privacy Sandbox which will enable targeting with alternative technologies.

How should we interpret this opinion piece?

A lot of what has been included is information from the 2019 reports. In effect, it’s a summary of previous activities plus additional material to bring you up to date. Although it is a rather long piece, there is some clear guidance for the way forward for developers of new solutions. 

Furthermore, it is bluntly warning technology firms that they are in the ICO’s sights: 

“In general, the Commissioner’s view is that these developments are not yet sufficiently mature to assess in detail. They have not shown how they demonstrate participants’ compliance with the law, or how they result in better data protection outcomes compared to the existing ecosystem” Source: ICO

Data protection by design is paramount – no excuses for non-compliance this time

The ICO opinion clearly flags to developers that they will accept no excuses for developing non-compliant solutions. In the past, there have been difficulties because the Ad Tech solutions have been in place for some time with the data protection guidance being retrofitted to an existing ecosystem. 

With the demise of third-party cookies and the advent of a variety of new solutions, there can be no excuse for ensuring that privacy is engineered into the design of the solutions. 

It explicitly highlights the need to respect the interests, rights, and freedoms of individuals. Developers need to evidence that these considerations have been taken into account.  

Users must be given a real choice

In the first instance, users must be given the ability to receive adverts without tracking, profiling, or targeting based on personal data. There must be meaningful control and developers must demonstrate that there is user choice through the data lifecycle. 

Accountability – show your homework

There is an expectation that there will be transparency around how and why personal data is processed and who is responsible for that processing. In the current ecosystem, this is largely impossible to achieve and there is no transparency across the supply chain. 

Articulate the purpose of processing data

Each new solution should describe the purpose of processing personal data and demonstrate how this is fair, lawful, and transparent. Can suppliers assess the necessity and proportionality of this processing? The 2019 report highlighted that the processing appeared excessive relative to the outcomes achieved. How will processors change their ways? 

Addressing risk and reducing harm

As a start, it’s important to articulate the privacy risks, likely through a DPIA, but also explain how those risks will be mitigated. The previous ICO reports indicated their disappointment with the low volume of DPIAs produced by Ad Tech providers. This needed to change. 

To conclude with a useful developer checklist

The ICO provides a checklist of how to apply these principles in practice. You can probably jump to this section if you really want to know what is expected: 

  1. Demonstrate and explain the design choices.
  2. Be fair and transparent about the benefits.
  3. Minimise data collection and further processing.
  4. Protect users and give them meaningful control.
  5. Embed the principle of necessity and proportionality.
  6. Maintain lawfulness, risk assessments, and information rights.
  7. Consider the use of special category data.

The ICO is very clear that the industry must change. There is no appetite to approve solutions that fundamentally adopt the same flawed ways of working. There is also a clear acknowledgment that some solutions are potentially anti-competitive so a partnership with the CMA will continue. You have been warned!

How did a trade union fall foul of the marketing rules?

November 2021

Unite the Union has been fined £45K over its telemarketing practices

The Information Commissioner’s Office (‘ICO’) has issued a fine to Unite the Union for what it describes as a ‘serious contravention’ of the Privacy and Electronic Communications Regulations 2003 (commonly known as ‘PECR’).

This action follows 27 complaints from individuals who had registered with the Telephone Preference Service (TPS) but received calls from Unite regarding life insurance – services provided to Unite members by a third-party insurer.

Unite believed these calls did not fall within the scope of the direct marketing rules.

What is the Telephone Preference Service?

The Telephone Preference Service (TPS) is the UK’s official ‘Do Not Call’ register for landlines and mobile telephone numbers. It allows individuals and businesses to opt out of receiving unsolicited live sales and marketing calls.

There is also a register for businesses telephone numbers, called the Corporate Telephone Preference Service (CTPS).

What does PECR require?

Regulation 21 of PECR requires a business to have gained prior consent before making unsolicited telemarketing calls promoting a product or service to phone numbers registered with the Telephone Preference Service Ltd (TPS).

Therefore any telemarketing calls to TPS registered numbers without valid consent will contravene PECR requirements.

The ICO’s findings

The ICO asked Unite to provide evidence of consent for these marketing calls. But Unite argued these were not marketing calls and were to let members know about services and benefits they were entitled too.

In their view the calls were made in accordance with their internal ‘Rule Book’. This required Unite to “notify members of the services and benefits that fall within their union membership and any changes to those terms.”

The ICO rejected this and found Unite had contravened PECR on the basis that Unite’s own rules cannot override the statutory protection provided under PECR.

In conclusion, the ICO found that in the 12 months to 11th March 2020, Unite had used a public telecommunications service to make 57,665 unsolicited telemarketing calls to people whose telephone number was registered on TPS.

Whilst individuals were told how to opt-out, they were not provided with the option to give opt-in consent to specific means of communication (such as telemarketing calls) relating to specific types of services or benefits. The ICO also noted the insurance services promoted in the calls were provided by a third-party insurer.

The ICO found that the consent Unite relied on was insufficient, as it provided broad information to data subjects, rather than the specific detail required under Regulation 21 of PECR. They highlighted multiple violations of under Regulation 21 over the 12-month period, which resulted in 27 complaints.

Not deliberate

The ICO took the view Unite had not deliberately set out to contravene PECR. However the ICO’s enforcement notice states Unite was ‘negligent’ and failed to take reasonable steps to prevent the contravention.

The ICO also concluded Unite had access to sufficient financial resources to pay the fine without causing undue financial hardship and that it’s findings were not affected by the current COVID-19 pandemic.

What can we learn from this?

Controllers who conduct telemarketing either in-house or via a third party service provider (like Unite did) should remember that consent is required for any calls made to numbers registered on the TPS.

I would add that consent may not necessarily be required for telemarketing calls to individuals who have NOT registered for TPS or CTPS. Legitimate Interests may be used as an alternative lawful basis, provided the relevant conditions can be met. DPN would advise controllers who wish to consider this lawful basis to conduct a Legitimate Interest Assessment (LIA).

Membership organisations should recognise that they cannot override the requirements under PECR (or any other data protection law, for that matter) by adopting membership rules which are in conflict the protections the law provides to individuals.

Like any marketing activity involving personal data, care is required to make sure the relevant legal obligations and requirements are satisfied.


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