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Is this the Way the Cookie Crumbles?

The Information Commissioner's Office (ICO) has announced that as of 26 May 2011, websites will have to "tell people how you use cookies, and tell them how they can 'opt out' if they object." In essence the EU is dictating that website owners must gain permission from users before placing a cookie on the user's computer and the ICO is struggling to interpret this directive.

Aside from the obvious ramifications this legislation will have for general business website operations, the effects on external marketing operations must also be considered.

For many years, paid advertising suppliers such as Google, Yahoo & Bing have offered conversion tracking. This tracking was supplied to help advertisers to optimise their campaigns to be more relevant to users and also to maximise lead generation or paid sales. These tracking cookies are placed on the user's machine the moment that they click an Ad and record a conversion if the user lands on a "Thank You" page after completing a desired action, be it a sale or form completion. This action could hamstring conversion tracking, as the major search engines will have to completely overhaul the way they drop this cookie. The ad will have to lead to some sort of splash page or message asking if a cookie can be dropped, and then onto the landing page. This also makes conversion reporting extremely inaccurate as how many users are likely to answer yes to their actions being tracked?

With only 8 days left until the deadline, the ICO's inability to clarify the legislation or offer advice on how best to adhere to it has left businesses and the marketing world dumfounded, leaving those likely affected to try and comply in whatever way they see fit. Unfortunately, popular (although at this point unfounded) opinion seems to be that strict guidelines will be established once the ICO has had an opportunity to take some businesses to court to test the legislation against opposition. "They can't do that!" I hear you say; well the total lack of guidance coupled with the lack of a debate over the issue is fuelling this belief.

Google is currently adopting a "wait and see" stance in relation to both AdWords and Analytics activities, as until the ICO works out the finer points of this sweeping reform, the major search engines are left trying to come up with backup plans (A) through (Z). The message I have received is that the major search engines will be working hard to shoulder the burden for webmasters and marketers. This action is obviously to protect revenue streams against businesses pausing activities rather than risk a reprimand from the ICO; a reprimand that is also "yet to be defined".

Sure there are cookies that compile a little too much personal info and this legislation should be carefully targeted at those types. But Analytics in particular is generally used to enhance the "user experience" using click tracking to assess website layout and user behaviour to make changes to benefit their audience. This isn't an underhanded attempt to spy on users; it's an invaluable tool to ensure that a website is built to appeal to its audience.

All in all, the EU has caused chaos by placing a deadline onĀ a directive that a "big brother" campaigner sketched on a napkin at lunch. They have not thought through the fallout of such legislation, they have not consulted those affected by the action and the indiscriminate nature of reform is akin to using a sledgehammer to crack a nut.

Something to watch will be the websites of the coalition government, at present 10 analytics related cookies will drop onto your computer when you access their homepages, let's see what happens come the 26th of May

Personally, I'm interested to know where the resistance is gathering, where are the petitions? Where is the call to arms for the marketing industry?