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CNIL-Facebook: Recent developments create legal uncertainty for use of online cookies

Brussels, 15 February 2016 – IAB Europe, the leading European level trade association representing a European network of national trade associations and companies from the entire range of actors in the digital advertising ecosystem, has taken note of the formal notice issued last week by the commission nationale de l’informatique et des libertés (CNIL), the French data protection authority, to Facebook asking the company to make changes inter alia to its use of cookies.

While prima facie the warning concerns only the company to which it was directed and not the entire sector, it carries a message for the entire industry, and may indeed have wider implications as many other French and European companies also engage in some of the practices in question.

Recent developments in the area of data protection law, including in the transatlantic and European contexts (Safe Harbour and the Privacy Shield, the proposed general data protection regulation, upcoming consultations on the amended ePrivacy Directive, recent national and European case law) are leading to a climate of confusion and uncertainty for many website operators. Yet companies are increasingly in need of legal certainty to maintain their ability to compete globally, but find such certainty to be sorely lacking.

We are deeply worried about the current escalations and actions from some data protection authorities, which leave the industry in a state of legal uncertainty. Questioning the adequacy of Facebook’s information to users about cookies and obtaining their consent by way of a cookie-banner creates an environment of uncertainty for thousands of European companies that conduct similar business models,” said Townsend Feehan, IAB Europe CEO and continues:

Cookies, including third party cookies, are an integral part of the Internet today and virtually all websites are relying on them for security purposes, displaying relevant advertising, analysing the effectiveness of their offerings, and more. It is just how the web works. The current escalations illustrate the need for an urgent clarification of the suggested data protection regulation and a revision of the e- privacy directive in order restore legal certainty for European businesses.

IAB Europe urges the European Commission, national data protection authorities and other stakeholders to establish a constructive dialogue with a view to improving legal certainty, and is committed to do its part in contributing to such an undertaking.

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