The European Data Protection Board has published new guidelines (14 November 2023) on the scope of Article 5(3) of the e-Privacy Directive – i.e., the so-called ‘cookie rule’.

These guidelines apply a maximalist interpretation to the cookie rule, meaning that a wide variety of technologies other than traditional cookies are, in the opinion of the EDPB, caught by the rule. Where a technology is caught then, depending on the purpose for which the technology is used, its use will be conditional upon obtaining consent.

The guidelines are open for public consultation until 28 December 2023.

Background

By way of reminder, Article 5(3) of the e-Privacy Directive creates requirement to obtain prior consent where a company stores information, or gains access to information already stored, in the terminal equipment of a subscriber or user of an electronic communications network, and that storing of or access to information is not strictly necessary to deliver the service requested by the subscriber or user. As such, the Directive seeks to protect what it regards as the ‘private sphere’ of the user’s terminal equipment from unwanted intrusion.

Historically it has been well-understood that traditional internet cookies trigger this rule. They function by creating a file on the user’s computer which stores information. Later, if the user returns to the website, the information in the file stored on the user’s computer is accessed (e.g., to verify someone’s language preference).

However, the extent to which newer methods of tracking a user’s digital footprint – such as pixels, URL tracking and JavaScript code – also trigger this rule has, to date, been much less clear.

How does the EDPB interpret the ‘cookie rule’?

In a word: broadly. For each part of the relevant test under the cookie-rule – the nature of information; what constitutes terminal equipment; and what it means to gain access to or store such information – the EDPB applies a wide reading. For example:

  • It does not matter how long information is stored on terminal equipment – the ephemeral storage of any information (for example, in RAM or CPU cache) is sufficient.
  • The nature and volume of information stored or accessed is also irrelevant. Note that it is also irrelevant whether the information is personal data (albeit this much was already well-understood prior to the guidelines).
  • Perhaps most controversially, the EDPB also suggests that it may not matter who gives the instruction to transmit information to the accessing entity – the proactive sending of information by the terminal equipment might also be caught.

Which technologies are caught?

The upshot of this interpretation is that the EDPB considers, in most cases, that the use of the following technologies will trigger the cookie rule:

  • URL and pixel tracking: for example, tracking pixels used to ascertain whether an email has been opened, or tracking links used by websites to identify the origin of traffic to the website, such as for marketing attribution.
  • Local processing: for example, using an API on a website to remotely access locally generated information.
  • Tracking based on IP only: for example, the transmission of a static outbound IPv4 originating from a user’s router, used to track a user across multiple domains for online advertising purposes.
  • Internet of Things (IoT) reporting: for example, smart household devices transmitting information to a remote server controlled by the manufacturer, whether directly or via intermediary equipment (such as a mobile phone).

What are the practical implications?

If a technology is caught by the cookie rule, then the company deploying that technology must obtain prior, opt-in consent before accessing or storing the information, unless the company can demonstrate that the storage of, or access to, the information is strictly necessary for the purpose of delivering the digital service.

It is probably fair to say that this does not consistently happen in practice as of today. The practicalities of obtaining consent may also be challenging, depending on the context in which the technology is used. From the user’s perspective, questions of ‘consent fatigue’, in a world in which users are already bombarded with cookie consent pop-ups, also arise.

Responses to the EDPB’s consultation on the draft guidelines will make for interesting reading. Even when finalised, the guidelines will represent the EU data protection authorities’ interpretation of the law and are not directly binding law in their own right. Certainly, many of these points would form the basis for an interesting legal challenge before the European courts. In the meantime, however, businesses operating in the EU are advised to start preparing for a world where the scope of the cookie rule, as applied by the regulator, is much broader than they may previously have realised.