Since the European Union adopted changes to the E-Privacy Directive in November 2009, there has been uncertainty about the future of Internet services based on cookies in the EU. The major concern of Internet service providers relating to the use of cookies is Article 5(3) of the amended Directive, which sets a requirement for prior consent of users. Currently, the use of cookies is permitted in Finland provided that the user is appropriately informed of it.

On the other hand, the amended E-Privacy Directive has raised debate over whether its implementation in member states will have any impact on the Internet services business, since the Directive leaves much room for interpretation by national legislators. There seems to be the possibility to mitigate or even evade the requirement of the user’s prior consent. Recital 66 of the Directive states that the user’s consent may be received through browser settings. As default settings of major browsers generally allow cookies, this standpoint would make the Directive’s impact on business quite minor.

In Finland, a standpoint similar to Recital 66 seems to have been taken in the draft government proposal. The proposed text version of the Act on the Protection of Privacy in Electronic Communications (Sähköisen viestinnän tietosuojalaki) sets forth the requirement for the user’s consent for the use of cookies by Internet service providers. However, the draft governmental proposal provides that consent can be received through browser settings, since Internet services should be user-friendly. Thus, the user-friendliness of Internet services seems to have triumphed over the privacy arguments that lied behind the E-Privacy Directive amendment.

EU member states are to implement the amended Directive by the end of May 2011. In Finland, the next step in the implementation process is the Finnish Parliament. Could the user-friendly approach to use of cookies still change? It does not seem likely that the issue would raise any serious debate in Parliament. On the other hand, Finland has proceeded more quickly than most of the member states in the implementation of the Directive. Therefore, it is not yet clear what the general European standpoint will be. Some indication can be found in Opinion 2/2010 on online behavioural advertising issued in June 2010 by the EU Article 29 Working Party stating that browser settings could be used to collect valid consent only in very unique situations.

As a conclusion, the user-friendly approach taken in the government proposal seems to be clear on browser settings qualifying as consent for cookies. However, there still remains the possibility that Finland’s user-friendly approach could be changed to comply with a general European line favouring privacy concerns.