Well we finally passed the date of the ICO amnesty. And no arrests so far. In fact the new "implied consent" interpretation makes the cookie apocalypse soothsayers look a little foolish. The UK looks good for now - but the greater European market cannot be ignored by any company based here. The recent decision for instance by Dutch legislators suggests things are going to get very hairy in the European digital advertising space.

The Dutch Are Going Hardcore On The Explicit Opt-In

We can thank the ICO for taking the sensible decision of implementing implied consent but spare a thought for our Dutch friends. ExchangeWire attended a recent IAB event in the Netherlands on automated ad trading, and spoke to some senior industry leaders about the implications of hard opt-in for all cookies set on websites in the Netherlands. Again the government there has given the industry an amnesty - this time until the end of 2012 - to get its act together. The new law sees no distinction between first and third party cookies. This means that even websites using Google analytics will need permission from users to set the cookie. It means re-targeting is completely out of question - as is the use of social tools. And you can forget about third party ad serving. It would seem contextual advertising is back. Let's target like it's 1999. Wooooh.

Am I Breaking The Law If I Serve A Cookie To A Dutch User From A Site Outside The Netherlands?

The first question most people asked in private conversations around the fringes of the IAB event was whether sites outside the Netherlands that drop cookies on users with Dutch IPs are exempt from the law. The answer is: Yes. As long as your content isn't in Dutch you can drop as many first and third party cookies as you want - just as long as you comply to the laws of the country you are based in. This is a potential disaster for the Dutch digital media industry: it has effectively put in place a huge commercial disadvantage on the companies based there. There is already speculation over whether or not some of the native and international ad tech vendors will keep their data centres there given that the new Dutch law would cover their activity across Europe.

Using The Facebook Opt-In To Cover Your Site Across Europe

There are only two companies tooled up to deal with the EU cack-handed approach to the use of 1st and 3rd party cookies online: Facebook and Google. Facebook might be getting smashed in the public markets, but they have opted-in users in their hundreds and millions across Europe for targeted ads. Given the confusion and hysteria around this new law, Facebook is well placed to grab even more budget from privacy-fearing brands. Do you think a P&G or Unilever want to be caught in a messy privacy media storm? No, of course not.

Some Dutch publishers are already thinking of piggy-backing Facebook's privacy opt-in to get the explicit consent required to use first and third party cookies. It's unclear how it would work, but a simple hack of Facebook Connect might make it possible to opt-in users. However a simple change of Facebook T&Cs might put an end to that strategy. We need a proper solution for all European publishers.

The ExchangeWire Proposal: The Industry Needs A Universal Consent Tool For All European Premium Publishers

In the face of a horribly fragmented European approach to online privacy, ExchangeWire is proposing that all European online publisher bodies (AOP, BVDW et al) come together and develop a Universal Consent Tool for all premium publishers across Europe. One consent cookie to rule them all. Once you opt-in for one premium site, a cookie is set to opt-in you in to all the premium sites across Europe.

Does The Industry Really Need A Universal Consent Tool?

Simply, yes. We as an industry need a scalable pan-European solution that will help native European digital media businesses compete with the big US and Global solutions that already have the scale to deal with the new EU legislation.

How Does The Universal Consent Tool Work?

- All participating sites will ask a user not opted-in to the EUCT (European Universal Consent Tool) cookie to accept terms and conditions, and give "explicit" consent to the setting of first and third party cookies across all sites using the universal consent tool
- Once the users opts-in, he/she is opting into all participating sites using first and third party cookies; the user will have the option to opt-out of any of these sites
- After the consent cookie has been set, the user will not have to opt-in again on any of premium European publishers sites using the universal consent tool
- Of course if the universal consent cookie is deleted, and the user visits one of the participating sites he/she will be asked to opt-in again

Vendor-Neutral And Independently Owned

The new universal consent tool must be vendor-neutral solution. The EUCT cannot be owned by any third party vendor. The new entity must be owned by all the participating publishers, and must be a non-profit organisation.

A Privacy Contract With The European User

All consent cookie data collected cannot be used by any of the participating publishers or third party vendors. The EUCT agrees to sign a strict privacy contract with the users that none of this consent data can used in any or shape form to serve third party ads, and will sit untouched on an expensive data warehouse solution somewhere in Europe. All users have the option to opt-out of all or individual sites setting the universal consent cookie.

We Need Legitimacy; Let's Get Deloitte & Touche To Audit The Process

To give the EUCT legitimacy we need some independent body to audit the publishers and the process. Deloitte & Touche have a decent track record in online advertising, and would get the vote for the audit. It can not only audit all European publishers looking to get involved for suitability, but also the consent data to make sure that EUCT is not contravening its privacy agreement with users.

How Do We Get This Kick Started? Let's Have A Sit Down

ExchangeWire will happily facilitate a meeting in any European city to kick start this initiative, as this EU directive still has huge implications on a pan-European level. This directive leaves the industry severely disadvantaged. Native digital media companies really needs a level playing field with both Google and Facebook - who have cleverly crafted cast-iron opt-in solutions. The time for procrastanating and lobbying is over. We lost the political debate. We as an industry now need come together to come up with a solution that addresses the pan-Euro legal quagmire created by our friends in Brussels. And the European Universal Consent Tool could well be the panacea to the current privacy law confusion.

What's In It For ExchangeWire?

We work in this industry, too - and don't want to see it implode. Having watched various organisations over the past two years fail to tackle this new legislation head on, we feel a more coherent approach is necessary. This time it should be lead by the people in the firing line, namely the Publishers. Despite the "implied consent" approach in the UK, the digital media industry in Europe is still on a precipice - and must now act in unity to keep native European companies competitive.