Article 5.3 of the revised e-Privacy Directive 2002/58/EC provides two exemptions to the requirement of informed consent:
· when the cookie is used “for the sole purpose of carrying out the transmission of a communication over an electronic communications network” (“Exemption A“), or
· when the cookie is “strictly necessary in order for the provider of an information society service explicitly requested by the subscriber or user to provide the service”(“Exemption B“).
The Working Party, in its opinion 4/2012 of 7 June 2012, clarified the meaning and the application of these exemptions.
The main guidelines drawn from the opinion can be summarized as follows:
· With regard to Exemption A, the “sole purpose” requirement should be interpreted in the sense that the transmission of the communication must not be possible without the use of the cookie. Thus, cookies used to assist, speed up or regulate such transmission shall require users’ consent. The Article 29 Working Party said that only ‘load balancing session cookies’, that allow processing of web server requests to be spread over a number of computers, clearly would not require consent under the ‘transmission’ exemption.
· With regard to Exemption B, the two criteria to take into account are: (i) the service has been explicitly requested by the user who undertook “positive action” to request the service; and (ii) cookies are strictly needed to enable the service (i.e. if cookies are disabled, the service will not function) taken from the user’s “point of view”.”
Read the whole commentary by Marco Berliri, Massimiliano Masnada and Marta Colonna HERE.