The EDPS, the EC and article 5(3) of the e-Privacy Directive
I sometimes wonder why we have an Information Commissioner to look after our privacy rights in the UK when clearly neither the job nor the office is up to the task. But you have to ask the same about the Europe. Time and again Peter Hustinx, the European Data Protection Supervisor, gives warnings and makes requests on or about the EC – to very little effect.
Last week he delivered a speech at the University of Edinburgh, School of Law on the privacy implications of behavioural advertising. He commented
This is why I want to call on the Commission to ensure that Article 5(3) of the e-Privacy Directive is fully respected… The Commission should avoid any ambiguity as to its determination in making sure that these rights are delivered in the European Union.
More transparency, fairness and user control in line with Article 5(3) of the current Directive would require the inclusion of a “privacy wizard” in each browser so as to ensure that every user has been able to express his or her own preferences. Ideally, this should be combined with a “privacy-by-default” setting according to which third-party cookies are rejected, unless the user decides otherwise.
It’s not much to ask, is it? He is merely asking that the EC should insist upon its own laws. In an announcement dated yesterday, his office pointed out that “Up until 2009, Article 5(3) of the Directive only required that users be offered the right to refuse to be subject to online tracking. The new requirement that the user should give his or her consent is still being contested in large parts of the online advertising community.”
I don’t understand this. The Directive had to be implemented into national laws by 26 May 2011. So what’s to contest? I am not allowed to drive through my local village at 90 mph just because I contest the law. If I break the law I am prosecuted. So why do we not have enforced opt-in tracking cookies throughout Europe? Why does Peter Hustinx continually have to remind the EC that it has to abide by and enforce the laws it creates?