Cookies and Adtech: ICO publishes an ambitious recipe for compliance

Bryan Cave Leighton Paisner


The interaction between the General Data Protection Regulation (2016/679) (“GDPR”) and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (as amended) (“PECR”) has been vexing for some time now.

As a possible sign that supervisory authorities have lost patience waiting for the EU legislature to reform the ePrivacy Directive (Directive 2002/58/EC) on which PECR is based, the UK Information Commissioner’s Office (the “ICO”) released updated guidance on the use of cookies and similar technologies (the “Guidance”) on 3 July 2019. The Guidance provides the first in-depth insight into what the ICO expects from website owners in order for their cookie usage to comply with the GDPR/PECR framework. The Guidance comes just weeks after the ICO published an update report into adtech and real time bidding (the “Adtech Report”), the ICO’s progress report on a regulatory priority sector which is also powered by cookies.

One central message from these documents is that any notion of a regulatory enforcement amnesty pending the arrival of a new EU ePrivacy Regulation should be discounted - cookies are being singled out as “an increasing regulatory priority”.  The ICO has been looking for some time at long-established internet practices through the prism of the ungainly GDPR/PECR combination, has started to engage with stakeholders and does not like what has come to light. In the Guidance, the picture is challenging although there are a few areas where comfort can be drawn, e.g. less intrusive analytics cookies are not top of the list of enforcement priorities.  In the Adtech Report, the ICO’s two prioritised areas of concern are (1) the processing of special category personal data without explicit consent and (2) the complexity of the data supply chain.  The regulator appears to be firing a “shot across the bows” noting that, while the information gathering continues, the ICO expects data controllers in the adtech industry to re-evaluate their approach to privacy notices, the use of personal data and the lawful grounds being relied upon under GDPR. 

Which law applies to cookies: PECR or the GDPR?

Potentially, both apply.  PECR provides specific rules which organisations must follow when deploying cookies or similar technologies on “terminal equipment” like PCs or smart phones. When the ICO refers to “cookies”, it is also referring to local shared objections, “device fingerprinting” techniques, pixels, etc.)  The GDPR, of course, governs the processing of “personal data”. Cookies will often (but not inevitably) involve the processing of personal data e.g. user authentication cookies which allow an individual to log on to their account at an online service.  When PECR applies it takes priority over the GDPR (and the UK Data Protection Act 2018) and the ICO says that PECR should be considered first. 

It was originally intended that a GDPR-era replacement for PECR would have been finalised at the EU level and applicable from 

the 25th of May 2018.  The ePrivacy Regulation appears to have lost momentum, however, and significant compliance challenges come from the requirement to “retrofit” GDPR-standard requirements to PECR, e.g. “consent” for a non-essential cookie under PECR now has to be GDPR-standard consent. Similarly the “clear and comprehensive information” PECR requirements now mean “fair processing information” requirements from Articles 13-14 of the GDPR. 

What do I need to know about cookies?

PECR states, in summary, that consent must be obtained for the storing of cookies unless those cookies are “strictly necessary” to provide a requested service, or are required to allow “communication” between two parties over a network. The Guidance makes clear that in the ICO’s view:

  • Implied consent is not a valid legal basis for the use of cookies. The GDPR’s definition of consent has raised the bar, meaning that current mechanisms like banners which purport to collect consent if an individual continues to use a website will not be valid. In addition, the ICO’s view is that it will not be possible, in most situations, to rely on a user’s browser settings in order to demonstrate consent to the use of cookies.
  • Cookies may be “strictly necessary” if they are required to comply with other legislation, such as the GDPR. This may be a welcome clarification for organisations which use cookies for security and fraud prevention purposes, for example. Whether a cookie is “strictly necessary” must be considered from the position of the website user, however, and not the organisation making the website available. Analytics cookies cannot be considered “strictly necessary” and therefore require consent.
  • Where personal data are processed as a result of the use of cookies, it may be possible for the purposes of the GDPR to rely on a legal basis other than consent. This will vary on a case-by-case basis, however, and will need to be considered carefully.
  • Organisations must provide “clear and comprehensive” information about how they use cookies, to the same extent as if you are processing personal data under the GDPR. This will require many organisations to make substantial amendments to their cookie policies, and any cookie banners that are currently in place.

What should we be doing now?

In the blogCookies: what does ‘good’ look like?” the ICO’s Head of Technology Policy notes that for many organisations “more work will have to be done” to comply.  The Guidance notes that - while regulatory action is always a possibility - it is unlikely that the ICO would consider cookies with a low level of intrusiveness as a priority, e.g. first party cookies used for analytics purposes, or those which support the accessibility of sites and services. What seems clear is that waiting for the EU ePrivacy Regulation before reviewing your website’s cookie compliance post-GDPR could be a risky proposition.  Organisations should therefore consider:

  • Auditing your cookies to confirm which are being deployed across your websites, apps and other platforms.
  • Reviewing contracts with third parties which place their cookies on your platforms.
  • Reviewing and updating relevant cookie policies and consent collection mechanisms to reflect the combined requirements of PECR and the GDPR.
  • Considering whether adequate records are kept, where necessary, to meet the requirements of PECR and the GDPR. Consent records are particularly relevant here.

The ICO’s report on adtech and real time bidding

Of all the sectors to be affected by the GDPR, adtech has perhaps been one of the hardest hit. The confusing interplay between PECR and the GDPR is disproportionately problematic for a sector which depends so heavily on cookies.  It has also been singled out by the ICO as a regulatory priority area and the subject of a number of complaints to the ICO made by privacy advocacy groups.

Broadly speaking, “adtech” refers to tools that analyse and manage information for online advertising campaigns, and automate the processing of advertising transactions, e.g. the buying and selling of advertising inventory on a website.  It has been clear for some time that the ICO has had the adtech industry firmly within its sights.  The Adtech Report is a progress report; it is not guidance, although it indicates that the regulator does “not think these issues will be addressed without intervention”.

The Adtech Report focusses on so-called “real time bidding” (“RTB”), an auction process that is primarily used to sell visual advertising inventory on websites and apps (though it can also be used for other media such as audio and visual streaming). This “real time” auction occurs in a fraction of a second – in the time it takes for a website to load in a user’s browser.  Publishers make space available on their platforms, ultimately to be filled by content from advertisers as a result of a successful bid on a per individual viewer basis. The process relies on publishers creating “bid requests”, as well as a series of intermediaries such as Data Management Platforms (DMPs) which may be involved in enriching the data about the potential viewer and tagging it with information known or inferred about that person, making the bid request more valuable.  Adtech relies heavily on cookies and similar technologies to collect the data (including personal data) of the page visitor, which is then incorporated into the bid request before it is put out for auction.

Core issues highlighted by the Adtech Report

The ICO makes clear that it has chosen to investigate the RTB ecosystem because of its complexity and scale, alongside the risks that it poses to the rights and freedoms of individuals. The Adtech Report highlights:

  • GDPR Lawful Basis: There is a lack of clarity within the industry as to the situations in which the GDPR’s lawful bases apply. In particular, the ICO notes the misconception that legitimate interests can be relied upon to place cookies; as noted above, consent is required under PECR in order for most cookies to be placed on a device. Where personal data are also processed, a lawful basis for processing under the GDPR must also be identified. The ICO’s view is that if consent is required to place a cookie, “then in practice consent is the appropriate lawful basis under the GDPR”. This will remain a point of contention within the industry, and even amongst other data protection authorities, who consider that the more flexible “legitimate interests” basis may be relied upon in some circumstances.
  • Special Category Personal Data: The RTB ecosystem uses a number of alternative protocols. Two of the most common include data fields relating to politics, religion, mental and physical health – all of which are “special category personal data” for the purposes of the GDPR. This data is subject to stricter controls on processing, such as the need for the individual’s “explicit consent” (an affirmation by the data subject of a clear statement written in words). Current consent management frameworks operated by the main RTB protocols are, in the view of the ICO, not sufficient to comply with these requirements.
  • Lack of Transparency: Information provided to individuals about RTB processing often lacks clarity and fails to explain fully how personal data is processed. Organisations are therefore at risk of breaching the GDPR’s transparency obligations. This also causes difficulties in obtaining a valid consent to data sharing.
  • Lack of Understanding of Legal Framework: It is unclear that organisations participating in RTB frameworks properly understand how the frameworks operate and how personal data processing occurs. Those that cannot document and demonstrate their understanding of RTB processing (and the associated legal rights of end users) risk breaching the accountability principle under the GDPR, and falling below PECR requirements, too.
  • Data Protection Impact Assessments (“DPIAs”): RTB will often trigger the requirement for a DPIA to be conducted, on the basis of ICO-defined high risk activities, such as (i) profiling individuals on a large scale or (ii) “invisible processing” where personal data has not been collected directly from individuals and organisations consider that it would involve a disproportionate effort to provide transparency information to individuals (and so avoid doing so). The ICO has seen no evidence to date that organisations are aware of, or are meeting, the potential DPIA requirement.

What do we do if we are involved in online advertising?

The Adtech Report will have implications for all participants in the adtech system, from website owners (publishers) to exchange providers, and ultimately to advertisers. Apart from publishers carrying out a cookie audit, organisations involved in adtech should now look to understand:

  • The extent to which they are processing personal data, and who they ultimately pass this data to.
  • What may be required of them under standard-form contracts that are put in place by other players in the industry, particularly in relation to gathering end-user consent.
  • Any high-risk processing activities that they carry out, which may require a DPIA to be carried out.


Away from PECR and the GDPR, organisations active in the adtech industry are facing scrutiny under competition law. In fact, the Competition and Markets Authority (“CMA”) announced on 3 July that it has launched a market study into digital advertising and “broad potential sources of harm to consumers” from online platforms. The CMA has stated that this will include a review of the way that organisations collect and use personal data. The ICO and the CMA have in place a memorandum of understanding setting out the procedure for cooperation between the two authorities, so it will be interesting to see the extent to which any action taken is coordinated.


A regulator’s role is of course to enforce the law as it is, rather than the law as it was supposed to be enacted or as it might one day become and undoubtedly, the situation caused by the delayed EU legislative reforms is not of any regulator’s making. Finding ourselves on the cusp of the 5G era, with all the associated potential for the Internet of Things, whilst accompanied by a dysfunctional regulatory framework is less than ideal. Expecting compliance with the historic ePrivacy regime alongside the GDPR feels rather like swapping your horse for a car and still expecting it to run on hay.  

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Bryan Cave Leighton Paisner | Attorney Advertising

Written by:

Bryan Cave Leighton Paisner

Bryan Cave Leighton Paisner on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at:

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit
  • New Relic - For more information on New Relic cookies, please visit
  • Google Analytics - For more information on Google Analytics cookies, visit To opt-out of being tracked by Google Analytics across all websites visit This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at:

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.