by Mehmet Munur
The Article 29 Working Party published an opinion (WP194
today on the exemptions to the consent requirement for cookies or similar technologies under the
revised E-Privacy Directive. The Working Party elaborated on types of cookies that
may not require consent under certain circumstances, such as cookies that track
user’s input on forms or shopping carts and cookies that store users’ language
preference. Most importantly, the Working Party stated that first-party
analytics cookies are not likely to create privacy risks when they are strictly
limited to first-party aggregated statistical purposes, provide clear notice about
While the Working Party deems such cookies not to be strictly necessary for the
operation of a website, they also admit that the privacy risks are limited when
they are configured properly.
The Working Party elaborated on the two exceptions to
consent under Article 5.3 of the amended E-Privacy Directive 2009/136/EC
Under the Directive, service providers may only store information, or gain
access to information already stored, on equipment if the user has given consent
after having been provided with clear and comprehensive notice. The first
exception to the consent requirement is information stored for the sole purpose of carrying out the transmission
of a communication over an electronic communications network. The second
exception to the consent requirement is information strictly necessary for provision
of services explicitly requested by the user.
With regard to in construing the first exception, the Working
Party stated that the following elements may be helpful:
1) The ability to route the
information over the network, notably by identifying the communication
2) The ability to exchange data
items in their intended order, notably by numbering data packets,
3) The ability to detect
transmission errors or data loss.
Therefore, cookies or similar technologies that fall in any
of the above criteria should satisfy the exception to the consent requirement.
With regard to construing the second exception and due to
the complexities in what constitutes the service, the Working Party stated that
the following elements should be met:
1) A cookie is necessary to provide
a specific functionality to the user (or subscriber): if cookies are disabled,
the functionality will not be available.
2) This functionality has been
explicitly requested by the user (or subscriber), as part of an information
The Working Party then moved to the terminology relating to
cookies and created some distinctions between session cookies, persistent
cookies, first-party cookies, and third-party cookies. Importantly, the Working
Party stressed that they would be moving away from the distinction between first-party
and third-party cookies as used in the browsers. Most web browser settings
would classify a cookie placed on a user’s device by the domain visited by the
user as a first-party cookie and any cookie placed by another domain as a
third-party cookie. The Working Party uses a slightly different definition. Using
the definition of the third-party under the Directive to state that cookies
that are placed on a user’s device “to describe cookies that are set by data
controllers that do not operate the website currently visited by the user.” On
the other hand, first-party cookies “refer to a cookie set by the data
controller (or any of its processors) operating the website visited by the
user, as defined by the URL that is usually displayed in the browser address
In order to determine whether the cookie is strictly
necessary, the service provider must determine the lifespan of the cookie,
whether it is session based or persistent, and the purposes of the processing.
Therefore, the Working Party creates a continuum where first-party session
cookies may be strictly necessary whereas third-party persistent cookies may
not be. However, the Working Party stresses that these distinctions must be
used in conjunction with the purposes of the cookies in order to determine
whether consent is required.
The Working Party then discussed different examples of cookie
use scenarios that may be exempt from the consent requirements.
User Input cookies:
Looking at session cookies that track user’s inputs on a webpage, the Working
Party stated that these cookies would likely not require consent.
cookies: The Working Party came to a similar conclusion for sessions based authentication
cookies. However, persistent cookies for logins would require consent.
User centric security
cookies: User centric and user requested security cookies, for example
those related to log in attempts, would also not require consent. However, this
may not be the case for other cookies relating to the security of the website.
sessions cookies: Default flash player cookies may also not require consent
to the extent they relate to technical data such as image quality, network link
speed and buffering parameters. However, they should be session cookies.
session cookies: Sessions based cookies used to balance users across
different servers is likely not to require consent, either.
cookies: Session or persistent cookies relating to the user’s preference
over language or appearance may also not require consent, mostly because the
user shows his preference by clicking on a box or link to set these
cookies: The Working Party states that consent may be required from users
who are not logged into the service or are not customers of the service. However,
consent may not be required for users that are logged in and are requesting the
In addition to the above examples relating to the exempt cookies,
the Working Party stated that the following cookies would not be exempted from
the consent requirement: social plug-in
tracking cookies, third-party advertising
cookies, and first-party analytics
cookies. To the extent that these cookies are used for the tracking of the
individual, consent would be required. With regard to the first-party analytics
cookies, the Working Party stated that these cookies “are not likely to create
a privacy risk when they are strictly limited to first-party aggregated
statistical purposes and when they are used by websites that already provide
adequate privacy safeguards.” These safeguards should include a method for
opting out and anonymization of identifiable information such as IP addresses. Therefore,
first-party analytics cookies with the appropriate privacy controls would
likely not require consent even though they are not in an exempted category. The
Working Party notes, however, that the privacy risks relating to third-party analytics
cookies that track users across websites are higher and would require consent.
This opinion from the Working Party opinion falls in
line with the latest
opinions from the UK ICO
and the CNIL
The ICO and the Working Party appear to have taken a step back from the strict interpretation
of the amended E-Privacy Directive that would require informed consent even for
first-party analytics. In fact, the Working Party now calls for a revision of
the Directive to explicitly allow for
This long awaited opinion from the Working Party brings some
more detail around the difficult challenges faced by most companies in complying
with the revised E-Privacy Directive. It does not negate the need to conduct audits
and due diligence relating to cookies and similar technologies used by companies. It does, however, make first-party
analytics cookies easier to implement.
Labels: article 29 working party, CNIL, cookies, e-privacy directive, UK ICO