Following the introduction of the EU Privacy Directive, which governs the use of cookies, into Irish law, Mindshare met with the Data Protection Commissioner as part of the IAB Privacy Working Group. These are the notes from that meeting

1. Christchurch
Dublin
Contact Report
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Client: IAB & DPC
www.mindshareworld.com
A GroupM Company Product: EU Privacy Directive
Subject:
Report No.:
Meeting Date: 21 July 2011
Report Date: 22 July 2011
Minutes By: Ciaran Norris
Representing:
IAB & DPC:
MindShare:
Others:
Distribution:
Re: Action:
On July 1 2011, the EU Privacy Directive became law in the
Republic of Ireland. The Directive covers a number of areas,
but of particular interest to many businesses is its relation to
the use of 3rd party cookies.
The Data Protection Commissioner has released guidance on
how the directive will be translated and implemented. In order
to build a deeper understanding of what the directive means,
the IAB Ireland organised a meeting with the DPC to discuss a
number of the issues arising.
These notes should act as a guideline on how to ensure that
your business does not fall foul of the act, but should not be
considered as legal advice, and we would strongly recommend
that any concerned businesses undertake audits of all 3rd party
cookies that they may currently use, such as onsite analytics,
or advertising tracking.
The DPC is open to offering advice to businesses on particular
solutions they feel might ensure that they are covered, but will
not do so for anonymous submissions.
 The DPC are in a period of providing advice and
guidance on the Regulations in this area at this point in
time and plan to address any matters arising on a
pragmatic basis.
o There is not a ‘grace period’ as this would be
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Re: Action:
impossible as the Directive is now law – but
they are continuing to gather information.
o The DPC is also listening to informed opinion,
and thanked the IAB for their ongoing opinion
and advice.
 Any complaints will be investigated, but in so far as
possible within the law likely on a sectoral basis so as
to avoid the possibility of unfairly impacting any
specific company complained against in an industry
sector if their practice is in line with that in a sector.
 As stated in the guidance, cookies used for essential
user actions, such as filling online shopping baskets,
do not require consent but should not last more than 1
session.
 The DPC is considering what the definition of a session
is, as some users may leave computers on/browsers
open constantly.
 There are no criminal sanctions relating to section 5.3
of the act (referring to cookies), but they will, if all
other options are taken and fail to resolve a complaint,
use their powers of enforcement.
 Regarding the use of cookies for ‘operational’ tools,
such as on-site analytics, which are essential for many
online businesses, but not for consumers, the DPC
believes that a clear link from the homepage, with
supporting information, to an opt-out page with details
of what data is collected, why, and for how long, could
be considered as advance consent but this would only
apply to certain uses of cookies, and depends on the
IAB/industry supplying more information on how these
function, which we have promised to do.
o This should not be taken as a final ruling, but
simply as current opinion based on the
information available to him, and the
explanations provided in the meeting by the IAB
members
 The regulations apply even if you have no physical
presence in Ireland, and if your servers are located
outside the Republic if the relevant establishment
providing the service is not located elsewhere in the EU
where the law of that EU MS would apply.
 They apply to entities with a legal, physical
establishment in the country

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Re: Action:
 Regarding the use of other ‘operational’ cookies, such
as those for the attribution of ad effectiveness, or
frequency capping, he welcomed the IAB providing
more information and said that would inform his
opinion as to what might constitute advance consent
 On the issue of behavioral targeting, which was the
main reason for the inclusion of cookies in the
Directive, he feels that the education efforts of the
industry, in the form of the OBA, are a step in the right
direction, but will need more work
 The DPC believes that moves by browser
manufacturers to improve the ability to easily change
browser settings, will be part of a final solution for the
use of cookies in targeted advertising.
 The DPC expects industry to come forward with
realistic solutions that meet the law's objective of
giving users real control over the extent to which their
behaviour is tracked on the Internet
These notes should act as guidance for clients concerned
about the cookie regulations, but are not professional legal
advice. Please feel free to contact us with any questions, or to
get in touch with the DPC directly.