On September 14, 2011, the Article 29 Working Party (the “Working Party”) met with representatives of the European Advertising Standards Alliance (“EASA”) and IAB Europe, to discuss the industry’s new self-regulatory code of conduct for online behavioral advertising (the “Code”), which was released on April 14, 2011.

There has been significant debate in Europe about online behavioral advertising in connection with the revised EU Directive 2002/58/EC (the “e-Privacy Directive”) which sets strict requirements for the use of cookies.  The Code offers a mechanism for consumers to object to the use of cookies for online behavioral advertising by clicking on an icon included on each targeted advertisement.  The icon links to an informational website that allows users to switch off targeted advertisements.  In an August 3, 2011 letter to EASA and IAB Europe, the Working Party expressed concerns that the Code did not meet the e-Privacy Directive requirement regarding obtaining prior consent before placing cookies.

At the meeting, the Working Party reminded EASA and IAB Europe that “only statements or actions, not mere silence or inaction, constitute valid consent,” which is in line with the position the Working Party emphasized in its recent Opinion on the definition of consent.  EASA and IAB replied that the Code’s primary goal is to create a level playing field, and that the current version of the Code does not in itself aim to ensure compliance with EU and member state legal requirements related to the use of cookies.  The Chairman of the Working Party, Jacob Kohnstamm, cautioned that companies should therefore “not be misled in thinking that the [C]ode offers a ‘safe haven.’”

Kohnstamm invited EASA and IAB Europe to address the concerns expressed in the Working Party’s letter, and stated that the Working Party will take that response into account when drafting its opinion on the Code.  The Working Party intends to release that opinion by the end of 2011.

View a copy of the press release.