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Hal Licino

Cookie Monster: How The New EU Regulations Impact Email Marketers

Sep 28 2010, 12:42 AM by

Very few email marketers have lists that are strictly confined to the United States. Given the nature of internet email marketing, your subscribers can sign up from anywhere in the world. There really hasn't been any specific reason to consider them any differently - until now. You should be aware of a controversial new law taking effect in Europe next spring that can subject you to staggering financial penalties for doing something as normal and innocent as automatically placing a cookie on your visitor's computer.
Your 10% Click-Through Has Just Earned You a Fine of $80 Million

You have a list of over a million opt-in subscribers and about a hundred thousand of them live in Europe. You send out one of your usual email campaigns on April 27, 2011, encouraging your customers to click on a link to visit your landing page, where you automatically serve your conventional basic ad targeting or audience segmentation cookie. Congratulations! If your click-through is 10%, you are now facing fines of eighty million dollars.

Most email marketers may be blissfully unaware that the European Union (EU) has passed a new regulation that takes effect right across their 27 member nations on April 26, 2011. It deems any cookie that can be stored or accessed from any EU resident's computer may be placed only if the user "has given his or her consent, having been provided with clear and comprehensive information." Violations are subject to a fine of approximately $8,000 for each and every case.

You Must Gain Active Permission to Serve a Cookie & Repeat It Annually

It seems that the EU's commissioners don't spend a lot of time web surfing, or they would realize that a bout of clicking through websites in the manner that the vast majority of surfers do would be brought to a screeching halt by the requirement to physically approve each site's serving of a cookie. Many online users visit hundreds of sites per day, and that would mean that each new site they visit that year would require an approval click prior to launching.

Hiding behind the USA's Safe Harbor shield will not indemnify your brand to the fines and penalties that the EU can levy. Having a single subscriber on your list that is an EU resident equates to doing business in the EU, thus you are targeting their citizens. Case closed. Now write the check.

Ignore It At Your Peril: The EU Fined Microsoft Over $1 Billion

The EU has a long and ignoble history of passing Draconian legislation that is never properly enforced, so this law may end up being just as ignored as their similar regulations determining the loudness of lawnmowers or the straightness of bananas. Disregarding this legislation may be a mistake that many email marketers may not want to risk, however, given the EU's successful fining of Microsoft for over a billion dollars. Therefore... Caveat EUmptor!

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