Are you ready for the new cookies law?

22nd March 2012 By Louise Stephens in Legal

What is the new law?

On 25th May this year a new ruling made under the Privacy and Electronic Communications Regulations will mean that you will need to be upfront and honest on how you are using tracking devices, commonly known as cookies, in your digital marketing campaigns.



What is a cookie?

Cookies generally apply to e-commerce and websites where personal information such as buying history is recorded to bring you a more tailored marketing experience.

Am I using cookies in my email campaigns?


Most email marketing software uses a small, almost invisible, pixel image on your emails to give you data on open rate activity, what device the email was opened on, what email client (Hotmail, Yahoo etc) was used and on what browser (Firefox, Internet Explorer) in a system called open tracking.

What is the difference between open tracking used in email marketing and cookies?

The Direct Marketing Association (DMA) thinks there is a difference, but we are not so sure. Here are their arguments:

  • Open tracking pixels are downloaded by the consumer; with no way for the marketer to read them back so is exempt from the law.
  • Pixels also return information in the same way that web pages return information about the user’s computer, as opposed to cookies which are designed specifically to allow websites to track previous behaviour.
  • Open tracking is also associated with an email address and is therefore device independent versus cookies which have a one-to-one relationship with a specific device.
However, until we see cold hard evidence that email is NOT covered in this legislation, we think it is best to assume it is. We think that email could potentially be classed as a cookie as it essentially is having the same outcome.

So, what do I need to do?

To cover yourself we would recommend that you err on the side of caution and amend your Privacy Policy (if you haven’t got one, check out our 10 essential ingredients to your Privacy Policy post) with a clear line about open tracking being used in your email campaigns.

You should state that anyone signing up to your email campaigns (and all current subscribers) that you are using tracking devices to enhance their experience with your company.

You could do this in two key steps:

  1. Amend your privacy policy to include a line such as “As part of our email marketing activity, we use an open tracking system to ensure you receive targeted and relevant information from us. This data is not shared with any third parties without your consent.”
  2. Include the wording under any sign-up form on your website or any other subscriber mechanism so that there is no confusion on how you are using the data. A link to your Privacy Policy will do, but if in doubt, spell it out.

That’s it?

Yes, for now. Until we can get some hard evidence that email is NOT included in this leglislation, our best practice advice is to be open and transparent on how and why you are using the existing tracking in your email campaigns to cover your back.

Remember, we are not legal experts so this is guidance rather than doctrine. We’ll keep you updated but if you’re really keen, you can read up-to-the-minute information on the new law at the Information Commissioner's Office.

Louise Stephens
About the Author

Louise Stephens

Louise is an email marketing consultant at little green plane. She advises and builds lasting relationships with our existing clients as well as handling all new business. Louise also conducts full demonstrations of our software and will advise on the right package for your business. Louise is passionate about email marketing and will happily train clients on a number of topics including; best practice, engaging your audience and getting the best return on your investment.