10 November 2009 | Author: Andrew Girdwood Head of Strategy

Will new EU rules smack affiliate networks the hardest?

New EU regulations are on the way that will serve to make web tracking strictly opt-in. Cookie tracking may be protected by browser options, but alternative methods offered by some affiliate networks may end up being crushed.

Bigmouthmedia previously wrote about the EU proposal in June, in which the EU outlined to stop any form of tracking that stored data on a terminal - such as a computer - without the user's express opt-in. The proposed regulation stated:

Member States shall ensure that the storing of information, or the gaining of access to information already stored, in the terminal equipment of a subscriber or user is only allowed on condition that the subscriber or user concerned has given his/her consent, having been provided with clear and comprehensive information, in accordance with Directive 95/46/EC, inter alia about the purposes of the processing.

There were some exceptions, however. The proposal continued:

This shall not prevent any technical storage or access for the sole purpose of carrying out the transmission of a communication over an electronic communications network, or as strictly necessary in order for the provider of an information society service explicitly requested by the subscriber or user to provide the service.

The EU has now accepted this proposal, and it will be up to local European Governments to pass local laws to bring the understanding into effect.

At the first take, the digital marketing community in Europe is suggesting that the opt-in and opt-out functionality required by this new directive be present at the browser level rather than the website. This would avoid websites having to serve users with disruptive pop-ups, layers or permission request dialogs before allowing access.

Affiliate networks may be hit hardest by this new ruling, as they pioneered much of the progress in alternative tracking methodologies. Neither affiliates nor affiliate networks are paid when a cookie is deleted or fails to be placed, and use of both ETag and Flash Cookies has been tested.

HTTP ETag tracking stores data in the browser's cache and is separate from standard cookies. In order to rid themselves of an ETag, a user would most likely have to delete their entire cache. It is more than possible that this measure would fail the new EU regulation requirement for opt-in.

Flash cookies are equally elusive to the user. In some cases, the Flash cookie cannot be easily deleted by user through the standard browser options at all. Affiliate networks may feel the pinch at the loss of flash cookies or ETags, but neither technique is widely utilised, meaning that the setback may not be too severe.

Should the EU decide that browser controls are not sufficient for cookie opt-in, many forms of digital marketing - from search through to display - will face a considerable challenge.