A guide for Brands, Publishers and Agencies
In Autumn 2024, the UK Information Commissioner’s Office (ICO) clarified cookie consent requirements under the Privacy and Electronic Communications Regulations (PECR) for tracking transactions in Cashback, Loyalty Publishers, and other reward-based business models. The ICO confirmed that cookies used to track purchases and deliver rewards are "strictly necessary," as they enable the service consumers sign up for. This ruling has significant implications for the Partner Marketing industry, offering legal guidance for Brands and Publishers operating Cashback, Loyalty, or hybrid models.
This article explores the ruling's details, its industry impact, and addresses common questions.
The ICO ruling on “strictly necessary” cookies
The Information Commissioner’s Office is the UK’s independent regulatory authority responsible for upholding and enforcing data protection, privacy, and information rights laws.
The ICO's ruling establishes that cookies for reward services, such as cashback or loyalty programs, are deemed "strictly necessary" under PECR. This classification applies because such cookies are essential for delivering a service explicitly requested by the user.
The ICO clarifies:
“For example, when someone signs up for an online service offering cashbacks or rewards, it is likely that some cookies set by that service would be essential as the user has requested that service.”
The ruling exempts these cookies from the consent requirement, provided their use is strictly limited to delivering the requested service.
However, the ICO further notes that if cookies are utilized for secondary purposes beyond the essential service, the exemption may no longer apply.
Sources and further reading: ICO, 2024
“The ICO ruling in the UK provides a solid legal framework for how Brands and Publishers within Cashback and Loyalty programs can collaborate. This clarity helps all parties overcome legal hurdles and focus on scaling sales effectively”, says Derek Grant, VP Operations & General Manager UK & US.
FAQ for Brands and Agencies
1. As a Brand, I’d like to comply with the ruling. What do I need to do?
To comply with the ruling, the tracking settings in your partner program need to be checked. Depending on which kind of tracking you have implemented, the changes will be implemented either by your tech team or by Tradedoubler. Please reach out to your account manager at Tradedoubler to check which kind of tracking is implemented. Also, you might want to reach out to your internal legal team to inform about the changes.
2. Do I need to change the tracking setup?
If you have Tradedoubler’s Tracking Library set up correctly, you don’t need to change anything, since the changes can be made by the Tradedoubler team. Once confirmed by you, we will change the tracking settings to ensure consumers from Cashback and Loyalty Publishers are exempt from cookie consent.
If your partner program is not yet tracking with our Tracking Library, please upgrade your tracking to become compliant with the ICO rules. In this case, please reach out to your Tradedoubler account manager. Otherwise, please make sure that your internal tech team implements the necessary changes. We are happy to help in this process.
3. How does this affect my programs in markets outside of the UK?
The ICO ruling specifically applies to the UK market, as it is governed by UK data protection laws, including PECR and the GDPR, as retained in UK law. However, we predict that more markets will follow suit, after the German BVDW (Bundesverband Digitale Wirtschaft) published recommendations on cookie consent settings that were announced in March of 2022.
For your Tradedoubler campaigns in markets outside the UK, compliance depends on the local regulations governing cookie usage and privacy. We ensure that our tracking solutions always align with the legal requirements of each market.
“If you are unsure about the ICO ruling and its implications, please get in touch with us. We will discuss the Publishers in your program who fall in line with the ruling and provide you with advice and guidance”, states Rebecca Rowe, Head of Brand Development & Grow.
FAQ for Publishers
1. Does the ICO ruling apply to me? If yes, do I need to change my links?
In 2022, we launched a new tracking technology, the Tracking Library as the new standard tracking for new programs. Furthermore and since then, our tech and account management teams have been working to ensure that all programs on the Tradedoubler team upgrade their tracking to the Tracking Library.
As a Publisher, you do not need to take any action – changes in tracking links or accounts are not needed. Our tracking technologies are configured to handle any adjustments required to comply with the ICO ruling, ensuring a seamless experience for Publishers.
We will review all Publisher types in our network, identify those where the “strictly necessary” logic applies, and reach out to them. If the ruling applies to you, we will contact you, provide further guidance, and ensure compliance.
2. What is the Tracking Library?
The Tradedoubler Tracking Library is a script-based tracking solution that is implemented on Brands' sites. Once integrated, it will automatically use the most adequate and legally safe online tracking option in any given moment and site, browser or app environment.
It features cookie tracking based on legal consent management requirements, server to server tracking, app tracking and cross device tracking.
For Brands, applying the Tracking Library means enabling a legally safe and effective technology that serves as the most trustworthy solution when partnering up with Publishers.
3. I have elements of cashback or loyalty in addition to other offers like vouchers on my website. How does the ICO ruling apply in this case?
As per the ICO’s guidance, “cookies that may be strictly necessary to provide one service are not automatically strictly necessary to provide another, different service.” Therefore, activities, where a cashback or loyalty element is fundamental to the service and explicitly requested by the user may involve tracking via a separate Tradedoubler site, which could qualify as strictly necessary cookies.
All other activities will be subject to our standard attribution mechanisms.
4. Does the ICO ruling impact my campaigns in other markets outside of the UK?
No, the recent ICO ruling specifically applies to the UK market, as it is governed by UK data protection laws, including PECR and the GDPR, as retained in UK law.
For campaigns running in other markets, compliance depends on the local regulations governing cookie usage and privacy. We ensure that our tracking solutions always align with the legal requirements of each market. We will contact affected publishers directly if any adjustments are required in a specific region.
“We have analysed our network to identify all Publishers in the Cashback, Loyalty and Reward segment to ensure compliance according to the ICO ruling. Please reach out to us in case you have any questions if and how you as a Publisher are afftected”, says Dan O'Kane, Head of Publisher Development UK & US.
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