Online tracking: questioning the power of informed consent

Online tracking technologies have raised considerable concerns regarding privacy and the protection of personal data of users. In order to help users to regain control over their personal data, Europe has amended its ePrivacy directive towards an opt-in regime. There are however many open questions concerning its implementation, especially regarding the issue of informed consent. This paper explores how the new legal situation impacts on behavioral advertising practices via the storing and reading of cookies in the Netherlands. The results show that the majority of the surveyed parties involved in behavioural advertising do not inform users about the storing of cookies or the purposes of data processing of the subsequently obtained data, neither do they have obtained users’ consent for the storage of cookies. We also found that the majority of users lack the skills and knowledge how to handle cookies. These findings critically question the wisdom of the "informed consent regime" which lies currently at the heart of Europe’s ePrivacy directive.