Accept or refuse cookies? We explain the new rules on internet advertising trackers

Since April 1, Internet users have in most cases the possibility of refusing in one click the presence of advertising tracers when they arrive on a website.


 

“For franceinfo, respect for your privacy is a priority”. By logging in since April 1 to franceinfo.fr, you may have noticed the appearance of an unusual window. Displayed upon arrival on our website, it warns that “France Télévisions, Radio France and its partners use tracers to store and access your personal data” for audience measurement and personalization purposes, in particular advertising when you watch a video on our platform. You have three choices: accept all these tracers (generally called “cookies”) without distinction, go to a menu allowing you to authorize some but not others, or even refuse them all.

Like franceinfo, all websites based in France have had to set up a banner of this type since the beginning of the month. What do these headbands really mean? Why have the rules for accepting or refusing these cookies evolved? Do some sites have the right to force Internet users to pay if they do not wish to accept these advertising tracers? Franceinfo explains everything to you.

What is a cookie ?

Forget all about cookies: Cookies are small text files sent by different servers to your device (e.g. your phone or computer) when you browse the internet. Appeared in the mid-1990s, these trackers have the role of remembering your online behavior. It is for example thanks to cookies that a merchant site can remember the contents of your basket between two visits.

But cookies are also used for advertising purposes. Internet sites may thus have entered into an agreement with an advertising agency which will install a cookie on your computer, and which will then display advertisements for the same product throughout your browsing on different sites depending on your online behavior.

These advertising tracers, called “third parties” because they are not created by the site editor but by an external partner, have established themselves over the years as a particularly effective marketing tool. “Thanks to advertising cookies, we can know how many times an Internet user has seen an ad, for example to display a different one after a certain time if he does not click on it. An advertiser can also study how much a buyer spent after clicking on a banner, which allows them to easily calculate their return on investment ”, details for franceinfo Nicolas Rieul, president of IAB France, an organization which brings together Internet advertising players. A targeted advertising campaign is thus on average 50% more expensive than a traditional campaign, adds this specialist.

Why did the banners warning of the presence of cookies on French sites change at the beginning of April?

Because the National Commission for Informatics and Freedoms (Cnil), administrative authority responsible for the protection of the personal data of French people, has warned that it would crack down from April 1 with web players who did not comply with the regulations concerning these famous cookies.

This regulation dates back to 2002, but in 2009 underwent its first founding modification, states Nathalie Metallinos: “The introduction of the principle of the prior consent of the user to place cookies on his terminal which are not strictly necessary for the proper functioning of a site”. In practice, this means that the site of a large-scale retailer does not have to ask your opinion to install the plotter on your computer that allows it to manage your basket, but that it is obliged to obtain your agreement. before displaying targeted advertising, for example based on your previous purchases.

“Initially, the CNIL had adopted a pragmatic approach to this directive and considered that the user’s agreement could be implicit., develops the lawyer. A banner informed you of the presence of advertising cookies, and if you did not go to a special menu to deactivate them, we considered that you gave your consent to the presence of these cookies ”.

New upheaval in May 2018 with the entry into force of the general regulation on the protection of personal data (RGPD), which shattered this notion of implicit consent: now, the Internet user must be informed of the purpose of the installation of each tracker on their device, and will have to perform a voluntary action (most often a click on an “accept all” button) to show their agreement.

However, the CNIL waited until October 2020 to publish its “recommendation” on targeted advertising, in which it claims that the collection of users’ consent “Includes not only an ‘accept all’ button but also a ‘reject all’ button”, or a possibility of “Continue without accepting” the presence of cookies. After a period of adaptation left to professionals, the CNIL announced that checks on the correct application of these rules would begin in April. Since the implementation of the GDPR, the Commission has a strong argument to enforce them: the possibility, for the most serious infringements, of issuing fines up to 20 million euros or 4% of turnover global company at fault.

How have website publishers responded to these changes?

The possibility of internet users turning down third-party trackers with one click has caused a cold sweat among many in the industry, whose business model depends on the money generated from online advertising. “We were afraid, but the first feedback from the application of the measure reassured us: depending on the case, the acceptance rate of cookies varies between 60 and 90%”, welcomes the President of IAB France, who regrets, however, that the Cnil of other European countries have not harmonized their directives on the subject.

To continue to finance their activities through advertising, professionals in the sector are also working on techniques that will be offered to Internet users who refuse advertising tracers. “We will continue to offer them advertising, but it will be contextual and no longer targeted: algorithms will analyze the images or text they consult to offer them something relevant”, adds Nicolas Rieul.

Bertrand Gié, director of the news department of Figaro and president of Geste (Group of online service publishers), for his part fears that this regulation favors giants such as Google, Facebook and Amazon, which in 2020 already captured 70% of the market share of online advertising, such as ‘indicated The echoes in December.

The president of Le Geste also notes that most of the sites of these platforms have not yet applied the recommendations of the CNIL, and still require Internet users to go to a second level menu to deactivate advertising trackers. They invoke for this “A subtlety introduced by the GDPR”, writes the Journal du net: “An organization established in several countries of the European Union can benefit from the one-stop-shop mechanism to have as sole interlocutor the authority of the country where its main establishment is located”. However, the European entities of these digital giants are often domiciled for tax reasons in Ireland, where the counterpart of the Cnil has not yet called for the same changes as in France.

Do some sites have the right to charge Internet users if they do not accept these advertising tracers?

Faced with the new regulatory situation, some publishers with an economic model historically based on free access and financed by advertising have offered Internet users a surprising choice: accept advertising cookies and continue to access the usual content, or take out their credit card. . Some Webedia group websites such as jeuxvideo.com or AlloCiné offer Internet users “To access the site for 2 € TTC for one month without advertising cookies” or“Access the site for free by accepting advertising cookies”.

The Marmiton cooking recipes site does offer a button to refuse all cookies, but this is only used to display a message warning the reader that “The lack of advertising revenue, access to content” is paid to him: 0.49 euros per month. The world has also tested a similar solution: accepting advertising tracers, or subscribing to a paid subscription that allows you to avoid them.

This practice, called “cookie wall”, is it legal? No, the Cnil had initially replied. Based on the doctrine issued by the grouping of European personal data regulators, the Commission considered that this type of device could not guarantee free consent to the Internet user, as required by the GDPR. But the Council of State, seized in particular by the Gesture, ruled otherwise. In a decision dated June 19, the highest French administrative court considered that the CNIL had exceeded its powers by stating “Such a general and absolute ban” “cookie walls”, as noted at the time Release.

“Pending a lasting clarification on this issue by the European legislator”, the CNIL indicates on its website that it will determine “On a case-by-case basis if the consent of individuals is free and if a cookie wall is lawful or not”.

Contacted by franceinfo, the association La Quadrature du net says it is not “Not very worried” about this and believes that these mechanisms will soon disappear. “The Council of State simply reminded the CNIL that it was not there to establish general rules but to apply the regulations to casesconcrete ”, comments Arthur Messaud, lawyer for this association for the defense of rights and freedoms on the Internet. “Of course, the GDPR does not prohibit cookie walls in black and white, but all of the European CNILs have reiterated the importance of obtaining free consent from Internet users. We could attack these sites, but it is so obvious that this practice is illegal that we prefer to let the Cnil do it. ”





 

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