Is implied consent the way forward for web analytics

Is implied consent the way forward for web analytics?

The ICO talks to WAW London

Consent was a recurring theme during a record night (attendees and questions!) for Web Analytics Wednesday in London, with focus on what the EC Privacy Directive means for the analytics we all currently take for granted.

Sponsored by Lynchpin and Econsultancy, with 150 attendees and having representation from the ICO, the evening began with the key outcomes of a recent Econsultancy survey into industry perceptions of the "cookie directive" presented by Peter Abraham.

64% had "read" the guidance, but surprisingly, the vast majority believed that web analytics was somehow exempt.

Dave Evans Group Manager for the Information Commissioner’s Office  soon put that myth to rest, confirming that web analytics was not exempt from the requirement to gain consent and "putting your head in the sand" was not an option.

A lot of questions then focused around what consent might mean for web analytics, and in particular the nature of "implied consent".

If the survey is right and only 7% of users understand cookies, there is clearly a massive awareness gap to be bridged before any implication of consent can be claimed.

Regulators are clearly keen to ensure that gap is closed, and there is responsibility for the industry to be up front and transparent in directly driving that education process. Implied consent can only be justfiable in that context.

The current trend from major brands is raising the profile of usage of cookies for analytics and providing plain English explanations of their purpose and benefits, which is aligned with that principle.

There are still major unresolved issues around responsibility for 3rd party cookies within publisher/network/advertiser relationships that span member states and indeed America and Europe (ironically the original apparent target of this legislation).

  • Ad networks set the majority of "intrusive" cookies, yet have no direct relationship with a visitor.
  • A lot of advertisers operate across European members states, and indeed within their own group companies.
  • Major advertising networks are US based and beyond the direct regulatory remit of the EU.

The directive has raised the online privacy debate, it is now a bit clearer how this will impact direct relationships between websites and visitors within the EU - but the wider issues of tracking across a global medium with complex relationships are as obfuscated as ever.

The priority now for the analytics industry is making the case for implied consent through up front, raised profile, transparent plain english (/german/dutch/spanish/...) information on what analytics cookies do and the benefits to the end user.

That will draw a clear line in the sand between these unintrusive cookies and the real targets of the legislation.


Hi - just a quick note about that 7% awareness stat. 7% refers to the number of marketers in our survey who thought that web users would understand cookies.

We have conducted some separate consumer research on this issue (the results of which we'll publish soon) and it seems that the majority of web users do know what cookies are.

Whether they will consent to their use is another matter though...

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