On 22 June 2010, the EU Article 29 Data Protection Working Party (the "Working Party") published its opinion (the "Opinion") in relation to online behavioural advertising ("OBA").  The Opinion contains a detailed discussion of the legality of current OBA techniques in light of recent changes to data protection legislation, and makes a number of recommendations which will have significant implications on the way in which OBA is used for online advertisers and network providers going forward.

The Working Party has determined that the use by advertisers and network providers of OBA, which allows advertisers to track individual internet users' interests by recording information based on searches they have conducted, is in some respects incompatible with recently amended data protection legislation.  Specifically, in relation to the use of cookies, network providers and publishers must implement an 'opt-in' as opposed to an 'opt-out' approach to ensure that informed consent to the use of users' personal information is obtained, and that affirmative action is taken by a user to indicate his or her willingness to the use of such a cookie.  Network providers must also ensure that certain information is made available to users before the option to opt-in is exercised, including information as to how the cookie will be used to create profiles, and what type of information will be collected to build such profiles.

Although the Opinion contains some detail as to how its recommended measures could work in practice, the Working Party has invited views from the industry as to how the measures could most effectively be implemented.

To read the opinion in full, please click here.

For a more detailed review of the Working Party's Opinion, please click here.

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The original publication date for this article was 21/07/2010.