Online tracking: questioning the power of informed consent

Abstract

Purpose

The paper aims to report the main findings of a study for the Dutch Regulatory Authority for the Telecommunications sector OPTA to explore how the new European “cookie rules” in the ePrivacy Directive impact on behavioral advertising practices via the storing and reading of cookies. The paper identifies the main dilemmas with the implementation of the new European rules. The Dutch case provides a valuable reality check also outside The Netherlands. Even before the amendment of the directive, The Netherlands already had an opt‐in system in place. From the Dutch experience important lessons can be learned also for other European countries.

Design/methodology/approach

After a brief analysis of the legal situation in Europe and in The Netherlands (section 2), section 3 reports about the findings of a survey among the main providers of targeted advertising in The Netherlands to explore the current use of cookies and targeted advertising practices. Section 4 describes the findings of a qualitative survey among Dutch internet users with the goal to define their level of skills and knowledge, acceptance of and behavior towards the placing and reading of cookies. A concluding section (section 5) summarizes the main findings and identifies implications for the future policy debate.

Findings

The results show that the majority of the surveyed parties involved in behavioral advertising do not inform users about the storing of cookies or the purposes of data processing of the subsequently obtained data, neither have they obtained users' consent for the storage of cookies. The authors also found that the majority of users lack the skills and knowledge to handle cookies.

Social implications

The findings critically question the wisdom of the “informed consent regime” that currently lies at the heart of Europe's ePrivacy Directive. The paper concludes with reflections about the concrete policy implications of the study, and a number of concrete suggestions of how to approach the future debate with regard to the regulation of online tracking and cookies.

Originality/value

The approach of the paper is original in that it combines legal analysis with two surveys: one among behavioral advertisers and one among online users. This approach permits us to better understand the efficacy of the new legal rules, to make predictions regarding the level of compliance with the new rules and identify areas in this highly topical debate that require further attention.

Citation

van Eijk, N., Helberger, N., Kool, L., van der Plas, A. and van der Sloot, B. (2012), "Online tracking: questioning the power of informed consent", info, Vol. 14 No. 5, pp. 57-73. https://doi.org/10.1108/14636691211256304