By Robert (Bob) Stankey and Adam Shoemaker On Sept. 14, 2011, the European Union’s Article 29 Data Protection Working Party warned that an industry-sponsored online behavioral advertising (OBA) framework will not satisfy the requirements of new EU data privacy laws. The OBA framework, which was discussed in a Sept. 21, 2011 webinar by DWT attorneys Bob Stankey and Adam Shoemaker, is designed to provide website users with notice that behavioral advertising is being used, and to give them the opportunity to opt in or out of the cookies that these programs deploy. In its current form, the OBA system is manifested through a distinctive icon at the corner of web-based advertisements. Clicking on this icon permits the user to learn more about the advertising system and provides an opportunity to reject cookies.

New European laws governing the use of electronic cookies are being implemented on a rolling basis at the national level, and require either prior or simultaneous consent to the use of cookies that track user interactions. The OBA framework is one possible avenue for increased user control, but the Working Party’s opinion casts doubt on its ability to provide the type of consent required to assure compliance with new laws. The Working Party’s press release explained that, in its view, the OBA framework “legitimizes processing on the basis of inaction or silence of the user. However…only statements or actions, not mere silence or inaction, constitute valid consent.” Further, industry representatives have “admitted that the current version [of the framework] in itself does not intent to provide compliance with the European and national legal requirements.”

It remains to be seen whether the OBA framework can be developed into a program that satisfies these requirements. This and other important questions have yet to be answered conclusively, as the European and national legal requirements are themselves still being developed. Further, the Working Party opinion, while considered influential, is not binding on a European or national level.