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How the Affiliate Council is dealing with the E-Privacy Directive

How the Affiliate Council is dealing with the E-Privacy Directive


Unless you’ve been living under a rock for the past eighteen months you cannot have failed to register the revised ePrivacy Directive.

Similarly, if you regularly delve into the forum you will probably have seen the ongoing debate about what the industry is doing to address the amendments to the existing law.

I therefore thought I’d try and sum up in as succinct fashion as possible, what the new law means, what the impact is specifically for affiliate marketers and what the Affiliate Marketing Council, as the only trade body representing the industry, is doing.

The Directive in a nutshell

First the necessary background: Directive 2002/58 on Privacy and Electronic Communications, (otherwise known as the e-Privacy Directive), is an EU directive dealing with data protection and privacy in the digital age.

In 2009, a revised e-Privacy Directive was announced that would be translated into law for each of the EU’s member states.

The revised Directive is part of a broader piece of European legislation – the EU Electronic Communications Framework - that comprises a total of five Directives and was required to be implemented into national laws by 26th May 2011.

The revised Directive will amend the existing one with a requirement now to obtain consent for “the storing of information or the gaining of access to information stored in the terminal equipment of a subscriber or user... having been provided with clear and comprehensive information” (Article 5.3).

And that’s where our challenge lies. As a Directive, it is transposed by all member states into their respective legislation. In other words, how the UK chooses to interpret the law may be very different to how Germany or France does. Different definitions will be applied and the forcefulness of the language and the speed of enforcement will all vary. The most up to date data I have on which EU member states have transposed the law into their respective legislatures and how they intend to interpret is from November 2011 and can be see here.

What has the UK done?

It has been widely understood that the UK Government has taken a ‘light touch’, business friendly approach. As the largest digital economy in Europe there is recognition that onerous implementation has the potential to hugely damage a great British success story.

You too can read the May 2011 open letter to industry from the Department for Culture, Media and Sport (DCMS).

The Information Commissioner’s Office (ICO) is the regulatory body for enforcing the law in the UK. They have issued relatively non-prescriptive advice to industry and decided in May 2011, when the law came into force, to give us one year to devise solutions that demonstrated we’re able to self-regulate.

The ICO has been clear that they do not want to stifle innovation or impose controls on business but they have asked the digital industries to step up and demonstrate they are mature enough to address the issues.

They have also offered advice on what they consider to be ‘strictly necessary’ (those cookies or tracking technologies that are exempt from the law), the notion of implied consent that could carry weight over time, how reliant we can be on browser companies to provide solutions and what business should prioritise.

You can read the half term report the ICO published in November 2011 here.

In March 2012 both the ICO and DCMS addressed figures from across the online industries. I provided a synopsis of what was discussed on the AMC blog.

What the AMC is doing

It’s fair to say the affiliate industry can pat itself on the back for being way ahead of the game on this one. Having initially discussed the issues in 2010, a legislation committee was formed in January 2011 to deal with the dual challenges of the extension to the ASA remit and the ePrivacy Directive.

Over time and with ongoing consultation with the Internet Advertising Bureau (IAB) and the ICO the committee launched the ‘Five Point Plan’ that addressed many of the points of the Directive:

  1. Establish a working group
  2. Carry out affiliate audits (and here)
  3. Publish a Consumer Guide to Affiliate Marketing
  4. Develop standardised wording as industry good practice for affiliates and publishers to inform consumers about the use of cookies for this purpose.
  5. Working with the UK Government and web browser manufacturers to enhance browser settings

With strong progress already made we’re close to launching the third element of the Plan, the consumer guide to affiliate marketing.

Sponsored by Nectar with content supplied by OMG, Affiliate Window, and Red Letter Days this promises to be a potentially very powerful tool demonstrating the willingness of our industry to take its responsibilities seriously. The site is due to go live within the next two weeks, with a sneak preview offered in tomorrow’s AMC meeting.

Where does Affiliate Marketing register in the grand scheme?

Overall it should be clear that we’re working towards the two core elements of transparency and education. We’re not actively pursuing technical solutions at present as we believe we’re at the low intrusiveness end of the scale.

There’s also a fine balancing act between wanting to self-regulate but not be overly committal for fear we have something to hide. We don’t. Affiliate marketing cookies are non-intrusive, they do not capture personally identifiable data and many of them are functional in allowing for reporting. We’re not behavioural marketers and our ads are not served based on previous browser behaviour.

For those of you who want to see how that area of industry is tackling the issue you should check the Online Behavioural Advertising Framework.

In conclusion then, be assured work continues apace to ensure affiliate marketers are at the forefront of self-regulation. This should always be the aim, rather than having draconian rules placed on us by those who don’t understand our business model.

Be sure to keep up to date with the work of the AMC by visiting the blog.

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Kevin Edwards

Kevin Edwards

Kevin Edwards has over 15 years experience working for affiliate networks.

Working as global client strategy director for Awin, Kevin is responsible for empowering the company’s employees and clients with the right data and insights to make the most informed decisions about their campaigns. He also takes an active role in creating best practice standards and self-regulation. Kevin was previously Chair of the Affiliate Marketing Council in the UK and continues to play an active role in the IAB’s Legislation and Standards’ Committee.


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