Privacy Pro: Language Matters in Written Disclosures, Consent Tools
Businesses that use tracking technologies must ensure they have the proper information and language in their disclosures and consent mechanisms to avoid legal risk, said Marc Roth, marketing and privacy advisor at Cobalt, during a webinar hosted by the Practising Law Institute Monday.
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“Companies that use session replay or cookies or tracking pixels face legal risk” from “federal and state laws,” he said, whether it's the federal Electronic Communications Privacy Act, the California Invasion of Privacy Act or another measure.
“Consent mechanisms and privacy disclosures are critical" to let users know “how tracking technologies and cookies are being used on their site,” Roth said. A statement that reads: 'By continuing to browse our site, you accept the use of cookies and tracking technologies' is “very good language” because of the phrase “by continuing to browse.”
The notice “doesn't just say, ‘Do you accept it, yes or no?’” or a “’Got it’ or ‘I'm okay with it,’” which makes it clearer what's happening with the tracking technology, he added.
Another example of a good notice would present users with three options: "'accept all cookies, reject all cookies, or cookie settings,'" where the visitor could “see various options to control what type of cookies that [they] want to allow.”
He noted, however, that "necessary or essential cookies" are almost always deployed and clicking the "reject all" button probably doesn't cover those cookies. Instead, the cookie disclosures are focused on trackers for non-essential website purposes, such as ads and marketing.
Language in disclosures and consent mechanisms matters too, though “there's no law particular on this point,” and therefore there is “some kind of leeway … in how [companies] want to disclose how [they] use the information."
For example, using 'to personalize your experience" may be “a little nebulous,” because it “doesn't exactly say for advertising or marketing purposes,” but since it talks about personalizing user experience on the website, it “might be sufficient,” Roth added.