Cookies are an important tool that can give businesses a great deal of insight into their users’ online activity. Despite their importance, the regulations governing cookies are split between the GDPR and the ePrivacy Directive.
Cookies are small text files that websites place on your device as you are browsing. They are processed and stored by your web browser. In and of themselves, cookies are harmless and serve crucial functions for websites. Cookies can also generally be easily viewed and deleted.
However, cookies can store a wealth of data, enough to potentially identify you without your consent. Cookies are the primary tool that advertisers use to track your online activity so that they can target you with highly specific ads. Given the amount of data that cookies can contain, they can be considered personal data in certain circumstances and, therefore, subject to the GDPR.
Before analyzing what the GDPR and the ePrivacy Directive have to say about cookies, it is essential to have a basic understanding of the different types of cookies.
Types of Cookies
In general, there are three different ways to classify cookies: what purpose they serve, how long they endure, and their provenance.
These are the main ways of classifying cookies, although there are cookies that will not fit neatly into these categories or may qualify for multiple categories. When people complain about the privacy risks presented by cookies, they are generally speaking about third-party, persistent, marketing cookies. These cookies can contain significant amounts of information about your online activity, preferences, and location. The chain of responsibility (who can access a cookies’ data) for a third-party cookie can get complicated as well, only heightening their potential for abuse. Perhaps because of this, the use of third-party cookies has been in decline since the passage of the GDPR
Cookies and the GDPR
The General Data Protection Regulation (GDPR) is the most comprehensive data protection legislation that has been passed by any governing body to this point. However, throughout its’ 88 pages, it only mentions cookies directly once, in Recital 30.
Natural persons may be associated with online identifiers provided by their devices, applications, tools and protocols, such as internet protocol addresses, cookie identifiers or other identifiers such as radio frequency identification tags. This may leave traces which, in particular when combined with unique identifiers and other information received by the servers, may be used to create profiles of the natural persons and identify them.
What these two lines are stating is that cookies, insofar as they are used to identify users, qualify as personal data and are therefore subject to the GDPR. Companies do have a right to process their users’ data as long as they receive consent or if they have a legitimate interest.
Cookies and ePrivacy Directive
Passed in the 2002 and amended in 2009, the ePrivacy Directive (EPD) has become known as the “cookie law” since its most notable effect was the proliferation of cookie consent pop-ups after it was passed. It supplements (and in some cases, overrides) the GDPR, addressing crucial aspects about the confidentiality of electronic communications and the tracking of Internet users more broadly.
To comply with the regulations governing cookies under the GDPR and the ePrivacy Directive you must:
The EPD’s eventual replacement, the ePrivacy Regulation (EPR), will build upon the EPD and expand its definitions. (In the EU, a directive must be incorporated into national law by EU countries while a regulation becomes legally binding throughout the EU the date it comes into effect.)
The EPR was supposed to be passed in 2018 at the same time as the GDPR came into force. The EU obviously missed that goal, but there are drafts of the document online, and it is scheduled to be finalized sometime this year even though there is no still date for when it will be implemented. The EPR promises to address browser fingerprinting in ways that are similar to cookies, create more robust protections for metadata, and take into account new methods of communication, like WhatsApp.