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sgt_bilko
Mar '11

I was just reading about some new EU law that is coming into force on May 25th this year that will drastically change how cookies may be stored on the computers of users who visit sites for tracking purposes and I wondered how this is going to affect affiliate sales and perhaps other aspects of our business? There is a link here to a BBC news report on the subject. http://www.bbc.co.uk/news/technology-12668552

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E-junkie_GuruWebmaster & Support Guru
Mar '11

From what we've read, this new directive includes a caveat exempting cookies that are "strictly necessary for the legitimate purpose of enabling the use of a specific service explicitly requested" by the user, such as our use of cookies to keep track of items each buyer has added to their online shopping cart, or your login session to use E-junkie Admin and Forum. In such cases, the user's consent to set a cookie is implicit in their use of a function that needs to set a cookie in order to function at all.



However, professional legal interpretations are harder to come by concerning whether or how this may apply to affiliate referral-tracking cookies, especially considering there's nothing about such cookies that reference or contain information about the individual user, neither personally nor anonymously but uniquely, in whose browser such cookies are set. Moreover, how might this directive affect EU-based sellers' use of E-junkie, which itself is not based within the EU? Ultimately, it may come down to a matter of how each EU member nation chooses to implement the rather vaguely-worded directive, since those will determine actual enforcement of these new guidelines.



We'll keep looking for information to help clarify this matter, but we'd suggest bringing it up with your own legal counsel if you have concerns about how or whether it may apply to you. I've written an email requesting information to the Pinsent Masons firm in the UK which appears to be foremost in publishing public information about the matter, e.g.:

http://out-law.com/page-5486

sgt_bilko
Mar '11

Just looking at this from a seller's point of view I am not adding cookies to anybody's computer when a visitor clicks on a link from an affiliate's site, nor am I making use of that cookie when they arrive, since the information is only used by E-Junkie and PayPal if a sale is made, however the affiliate is making use of E-Junkie's system to add the cookie and I don't know if that becomes a grey area.



At this stage I suspect talking to five different lawyers may bring about five different interpretations of the law but it may ultimately also apply to E-Junkie and non EU based sellers/affiliates if it can be established that they are dealing with EU consumers, which would inevitably be the case. That may seem hard to believe but a few years ago I found myself obliged to register for various US tax codes simply because a photo library I deal with is based in the US, even though I've never visited the US and I wasn't even directly selling there. Every three years I need to go through the same process.



Obviously we need greater clarification on how this law will affect what we are doing but I hope it isn't another one of those cases where it comes down to differing interpretations from various officials spread around Europe.