There has been a lot of talk in the email industry about whether open tracking falls under the category of “similar technology.” Let’s be clear right from the off: we cannot answer this question – only the Information Commissioner can answer this question definitively. What I can do is analyse what we know so far. A simple search of the most recent guidance notes showed that the word open was used four times and email was used once and this wasn’t in respect of email marketing.
Based on the conversations that have gone on with the great and good of the email community both here and in the US, The Email Marketing Council believes that email open tracking is not covered in this legislation. The purpose of the new Privacy in Electronic Communications Regulations was to “protect the privacy of internet users” and was driven by “concerns about the online tracking of individuals and spyware.”
Open tracking uses a one pixel by one pixel clear GIF, which is stored as a temporary file on the user’s computer. This is very different than the cookies used to track individuals online:
- Once images including open tracking GIFs are downloaded by the consumer, there is no way for the marketer to read them back. Cookies on the other hand are files stored on the user’s computer and are designed to be accessible over and over.
- Open tracking GIFs return information in the same way that web pages return information about the user’s computer because that is how the internet was designed as opposed to cookies which are designed specifically to allow websites to track previous behaviour.
- Open tracking is associated with an email address and is therefore device independent versus cookies which have a one to one relationship with a specific device.
If these differences are not enough then I throw out one last thought. Open tracking is most similar to web traffic and activity analysis based on server side processing of web server log files. This is not covered by the regulation changes. Even when it comes to client side cookie based analytics, the ICO has stated that they cannot conceive a scenario where they would prosecute for use of analytics cookies
I think that the motivation behind the new cookie law is a good one. Consumers do not really understand that everything they do online is being tracked. They believe that because they are moving around the internet in the privacy of their own home that what they do is private. This law however is clearly aimed at cookies used to build complete profiles of internet users which could eventually be sold on. These regulations were not aimed at marketers trying to ensure their emails reach the inbox and improve how they communicate with their customers.