What does the ruling mean for performance and affiliate marketing, and what steps has easy.MARKETING already taken?
As you have probably heard, the CJEU announced its ruling in the Planet49 case on October 1, 2019, and the media coverage has been highly sensationalist.
The ruling is being broadly interpreted to mean that, from now on, all cookies may only be stored and processed with the user's explicit consent.
This is causing unrest in the market, since it would of course have a major impact on performance and affiliate marketing as a whole.
In our view, this sweeping interpretation is wrong: the ruling neither described nor questioned the legal basis, but only ruled on the form in which consent is obtained.
The BVDW has also issued a press release and a statement on this:
- https://www.bvdw.org/der-bvdw/news/detail/artikel/bvdw-sieht-im-eugh-urteil-zu-planet49-keine-generelle-verpflichtung-zur-einwilligung/
- https://www.bvdw-datenschutz.de/urteil/eugh-urteil-zu-planet49-wenn-cookie-einwilligung-dann-aktiv
The following additional measures have already been taken:
Among other things, we are currently working in the BVDW's affiliate working group on a white paper that sets out the legal basis for affiliate marketing processes in general and for specific affiliate models in particular. From a legal standpoint, attributing transactions as the basis of the business model is not the same as other user-based business models such as cashback and loyalty or retargeting, which cannot work without creating user profiles. The aim is to continue to be able to define "legitimate" interest as the basis for attributing transactions.
In addition, an update to the German Telemedia Act (TMG) is currently in the works, and through the association we are working to make the interests of the affiliate industry clear to those responsible. The BVDW has meanwhile achieved an initial understanding at the Federal Court of Justice (BGH) regarding the differentiation between the methods enabled by cookies.
You can find an overview of the current legal situation here:
- https://www.e-recht24.de/artikel/datenschutz/11648-eugh-urteil-cookies-einwilligung.html
- https://netzpolitik.org/2019/wirtschaftsministerium-will-im-herbst-neue-regeln-fuer-online-tracking-vorschlagen/
Of course, we at easy.MARKETING have already taken steps to ensure that tracking works under both current and future legal frameworks!
- Our systems are built strictly on the data-light approach of affiliate marketing. We only collect, process or pass on the data required for each process. No profiling takes place when transactions are attributed to publishers. IP addresses are truncated and hashed and stored solely for fraud detection purposes. All in strict accordance with the GDPR requirements of privacy by default and privacy by design.
- Discussions about cookies often distinguish between “good” first-party and “bad” third-party cookies. Our systems can of course be deployed under the domain or subdomain of the shop system, making them part of the advertiser's first-party infrastructure. What's more, public networks and other third-party systems can continue to operate using our methods such as ID tracking and server-to-server tracking. This makes us an enabler for performance marketing as a whole. With us, you can tackle all the tracking problems that third-party systems face due to Safari's ITP, Firefox's ETP or ad blockers.
- We have added modules to our tag management and tracking systems that make them compatible with upstream CMPs (consent management platforms). Depending on which systems or procedures the user consents to or rejects, the CMP passes this information on to our systems, and we only allow the services and scripts that the user has permitted or for which legitimate interest can be applied.
- Should it become legally necessary to obtain consent on the publisher's site, we are able to place consent management modules upstream that collect the user's consent before tracking takes place, rather than only once the cookies have already been stored.
- Our work in a wide range of BVDW committees, labs, focus groups and working groups allows us to respond to developments early and, in some cases, even help shape them.
Especially now, when you need to keep your finger on the pulse to respond to technical and legal developments and help shape them, you should rely on a partner that, as a matter of course, stands up for the interests and needs of its partners and customers!
Your easy.MARKETING team!
Update: On October 9, 2019, we added the link to the BVDW statement.
