Since the 2009 amendments to Article 5(3) of the ePrivacy Directive (2002/58/EC) regarding cookies and consent, there has been considerable debate over what web sites and ad networks must do in order to deploy cookies lawfully, and over what constitutes informed consent from users (e.g., opt-in versus opt-out).  For a flavour, see the Article 29 Working Party Opinion 2/2010 on online behavioural advertising, strong opposition to this opinion from industry (pointing out that an opt-in consent regime for cookies would seriously disrupt online services), and even comments from the rapporteur for the Directive, Alexander Alvaro, trying to clear up what is required. 

Member States have until May of this year to implement these changes to the Directive in national law.  Following early indications that the UK would reject an opt-in system for cookies and simply copy the wording of the Directive leaving it to the UK Information Commissioner (“ICO”) to adjust to changes in usage and technology, the ICO today issued a warning to businesses and other organisations that run websites in the UK that they are going to have to “wake-up” to the fact that changes are being made soon. 

Although it is still not clear exactly what they are going to have to “wake up” to, industry may take some solace from the ICO’s statement that “changes must not have a detrimental impact on consumers nor cause an unnecessary burden on UK businesses,” and that “one option being considered is to allow consent to the use of cookies to be given via browser settings.”   Ed Vaizey, Minister for Culture, Communications and the Creative Industries, also said that the Government does not expect the ICO to take enforcement action in the short term against businesses and organisations as they work out how to address their use of cookies.

It therefore remains to be seen how the law will be implemented and enforced in the UK (as well as in the other Member States).  The Internet Advertising Bureau has issued a reaction to the ICO statement, expressing concern about confusion for consumers and businesses following the ICO’s warning, and emphasising that industry is working hard with the UK Government, the ICO and other stakeholders on potential solutions to help meet the informed consent provisions of the law.

Tags: ad networks, Cookies, ePrivacy Directive, UK Information Commissioner's Office (ICO)
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Photo of Mark Young Mark Young

Mark Young is an experienced tech regulatory lawyer and a vice-chair of Covington’s Data Privacy and Cybersecurity Practice Group. He advises major global companies on their most challenging data privacy compliance matters and investigations. Mark also leads on EMEA cybersecurity matters at the…

Mark Young is an experienced tech regulatory lawyer and a vice-chair of Covington’s Data Privacy and Cybersecurity Practice Group. He advises major global companies on their most challenging data privacy compliance matters and investigations. Mark also leads on EMEA cybersecurity matters at the firm. In these contexts, he has worked closely with some of the world’s leading technology and life sciences companies and other multinationals.

Mark has been recognized for several years in Chambers UK as “a trusted adviser – practical, results-oriented and an expert in the field;” “fast, thorough and responsive;” “extremely pragmatic in advice on risk;” “provides thoughtful, strategic guidance and is a pleasure to work with;” and has “great insight into the regulators.” According to the most recent edition (2024), “He’s extremely technologically sophisticated and advises on true issues of first impression, particularly in the field of AI.”

Drawing on over 15 years of experience, Mark specializes in:

  • Advising on potential exposure under GDPR and international data privacy laws in relation to innovative products and services that involve cutting-edge technology, e.g., AI, biometric data, and connected devices.
  • Providing practical guidance on novel uses of personal data, responding to individuals exercising rights, and data transfers, including advising on Binding Corporate Rules (BCRs) and compliance challenges following Brexit and Schrems II.
  • Helping clients respond to investigations by data protection regulators in the UK, EU and globally, and advising on potential follow-on litigation risks.
  • Counseling ad networks (demand and supply side), retailers, and other adtech companies on data privacy compliance relating to programmatic advertising, and providing strategic advice on complaints and claims in a range of jurisdictions.
  • Advising life sciences companies on industry-specific data privacy issues, including:
    • clinical trials and pharmacovigilance;
    • digital health products and services; and
    • engagement with healthcare professionals and marketing programs.
  • International conflict of law issues relating to white collar investigations and data privacy compliance (collecting data from employees and others, international transfers, etc.).
  • Advising various clients on the EU NIS2 Directive and UK NIS regulations and other cybersecurity-related regulations, particularly (i) cloud computing service providers, online marketplaces, social media networks, and other digital infrastructure and service providers, and (ii) medical device and pharma companies, and other manufacturers.
  • Helping a broad range of organizations prepare for and respond to cybersecurity incidents, including personal data breaches, IP and trade secret theft, ransomware, insider threats, supply chain incidents, and state-sponsored attacks. Mark’s incident response expertise includes:
    • supervising technical investigations and providing updates to company boards and leaders;
    • advising on PR and related legal risks following an incident;
    • engaging with law enforcement and government agencies; and
    • advising on notification obligations and other legal risks, and representing clients before regulators around the world.
  • Advising clients on risks and potential liabilities in relation to corporate transactions, especially involving companies that process significant volumes of personal data (e.g., in the adtech, digital identity/anti-fraud, and social network sectors.)
  • Providing strategic advice and advocacy on a range of UK and EU technology law reform issues including data privacy, cybersecurity, ecommerce, eID and trust services, and software-related proposals.
  • Representing clients in connection with references to the Court of Justice of the EU.
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