Back in November ’09, the EU announced a directive that threatens the legitimate use of cookies to track user behavior across the web by technology companies. Now, this directive is becoming law in many member states. It’s amazing how little has changed since I last wrote about it:

This post originally appeared on the Skimlinks Blog 16 months ago.

I had an idea for T-shirt slogan, but you’re probably not going to appreciate it unless
you’re sad enough to go to as many affiliate marketing industry events as I do. It would read:

“Every time you clear your cookies, an affiliate cries.”

Not too hot, right? But at least you, seasoned reader, might have understood where I was going with it. Ask my Mum what ‘clearing cookies’ means and she’ll stare at you blankly and tut-tut, wondering where you’ve picked up such yankee colloquialisms from. You used to be such a nice boy/girl.

The truth is, today’s web users (including my Mum) rely heavily on first party cookies to ensure a smooth browsing experience. Remaining logged into Gmail, heading back to Amazon to be told which comedy DVD to buy; these are tasks and actions we are used to and value as users. I could probably explain that to my mum. Given a couple of weeks…

But the value of third party cookies is less obvious.

The privacy lobby would try to tell you that these super-scary ‘spy cookies’, a phrase coined by EU Commissioner Viviane Reding (see her at 13m20s of this video), are used to track your every online move, spam your cat and seduce your daughter. The reality is very different.

Online advertisers and affiliate marketers depend upon third party tracking cookies in order to be properly rewarded for the promotional actions they take on behalf on brands and retailers. These advertisers fund the free content and services that users have come to expect online, and form the unspoken contract between content producers and consumers. Without them, distribution of free content becomes impossible. Moreover, in the highly liquid market that is e-commerce, any marketing action acts as a signpost for users directing them to useful and relevant sites.

With the CPA model as used by affiliates, this becomes ever-more apparent. My actions as an affiliate would only ever be rewarded when a sale occurs, or in other words, they were found to be useful by a user. These signposts, therefore, are fundamental to the usability of the web and inherently valuable.

The EU hasn’t bothered to see this side of the story. The 96 pages of contradictory directive recently passed (and much discussed) describe legislation designed to protect user-privacy but do little to define how member states should define privacy or even how user consent could be taken. There appears to be little or no understanding of the very foundation of the internet’s functionality. But there’s no point appealing to our Brusseleir friends now: this legislation will be UK law by June 2011.

At a well attended meeting of the IAB‘s Affiliate Marketing Council yesterday, the Head of Regulatory Affairs, Nick Stringer, gave an outline of what we can expect. As a country, the UK has a tendency to push through legislation like this as drafted and ‘on-the-nod’. That is to say, it’s not likely to be debated in Westminster. It may well pass into UK law sometime in the next two years as ambiguous as ever with the fight to be taken to the courts.

What can we, as an industry, do to counter these dismal prospects? Unfortunately, little at the moment. With an election looming, there is no way to guess when the next government might enact the directive. For now, all we can do is wait and turn the discussion to what technological changes we could implement to preserve our industry if it came to it . Will we end up with other cookie-less tracking? Would the browsers implement a sensible method of consent or will it be left to publishers on their individual sites?

When the time comes, and the new PM is getting comfortable in Number 10, just try and keep us from yelling at those in Westminster to explain the true value of online marketing.

If the next government clears our cookies, it won’t just be a couple of affiliates crying, it will be a whole industry.

I’m the Account Director at Skimlinks. If you want to carry on the discussion, leave a comment below, email me (mark@skimlinks.com) or find me on Twitter (@markofmac). For more information on the legislation, see the great posts at Econsultancy and Out-law.com.