Cookie Consent Platforms

Roll on four years  

The spectrum of how advertisers seek consent from their users for using their site has widened from the pre-GDPR days.  In those earlier days many had an in-house approach of ‘if you continue to use our site, you consent to our cookies’. Some still do.

Fast-forward to the present and many advertisers have full-blown consent requests with details on reams of cookies – sub-categorised perhaps as ‘essential’, ‘marketing’, ‘performance’, and ’functional’ – so that the user can accept one of ‘essential only’, ‘recommended’ or ‘allow all’ selections of cookies.

Important considerations that are often overlooked

Moonpull’s conversations within the affiliate industry has identified a number of important considerations that are often overlooked :

• ‘The main cookie legislation in the UK and EU (Privacy and Electronic Communications Regulations “PECR” dating from 2003) applies to Javascript tags as much as cookies and it was in place before, and in place after, GDPR becoming law
• GDPR did lead to the rules on how consumer consent under PECR legislation for such technologies (so those important components for much affiliate tracking), being changed and strengthened
• GDPR is about protecting information – it’s not about controlling technologies
• The PECR cookie legislation does not permit a ‘legitimate interest’ override from gaining consent. If it’s covered by the legislation and the technology is in use then consent is needed. No ifs, no buts.
• Consent needs to be given before the cookie is set or the javascript tag is called.

The combination of these considerations means that technologies for affiliate tracking need consent in a compliant manner – whether or not there is personal information involved – and before use. There are many questions that arise on assimilating these considerations, but this is what the legislative environment is.

A few technologies for affiliate marketing do exist that don’t utilise first-party cookies and/or have use cases where they are essential and thus don’t need consent, however they are in the minority and thus not within the scope of this article.

Compliance is difficult

The body in the UK responsible for enforcing PECR and GDPR, the Information Commissioner’s Office (the “ICO”), even fell foul of the legislation itself. Its upgrade to a compliant approach led to a 90% drop in cookie acceptance.

​​ For a live advertiser example, these screenshots illustrate changes in Wedgwood’s implementation.

In these examples taken from October and November 2021, we see that Wedgwood ‘rolled back’ the CMP that didn’t set many marketing cookies (as they were within the Marketing Category) if a user clicked the prominent ‘Allow Selection’ button live in October 2021 to one where the cookies were set within the prominent ‘Accept all cookies’ a month later.

Navigating Compliance vs the need to have functioning marketing activities

It almost goes without saying that being a CMO is not an easy task. In one ear you have the marketers wanting their necessary dataset uncompromised by legislative complications. On the other, they have their compliance officer explaining the law is the law.

Moonpull has seen many instances where this has played out with consent platforms changing from ones that are marketer-friendly (so setting cookies when perhaps they shouldn’t) to compliance-led (where core cookies for marketing or analytics are not set by a prominent button for the user to click) or vice-versa.

So, what does this mean for affiliate marketing? 

So here’s the real challenge: as dry as this is, the challenge is real. The threat to advertising for non-compliance is rising; and given the nature of the performance channel, it’s all getting very close to home.

Vigilance alone isn’t enough. Both compliance to the law and understanding the behaviours of the user are a necessity for both publishers and advertisers alike:

1. The very coding of Consent Management Platforms (CMPs) has a fundamental impact on tracking
2. The users behaviour when faced with the CMPs that hit the mark on compliance – do they make the “Accept All” choice, or are some users cautiously migrating to move to “Essential Only”?
3. Tracking to be rightfully rewarded is one thing – but what if the user experience is fatally damaged for those cash-back users, who elect caution and, as a direct result, their cash-back is no longer being tracked? This doesn’t just impact the user, it creates a challenge for the publisher and, potentially, reputational damage for the advertiser

When one considers the whole flow, there’s a critical issue that the whole industry is sleep-walking into. Consent Management Platforms that impact tracking result in mid-term reputational damage for the advertiser within affiliate marketing. Publishers will see EPCs drop off, and, quite possibly, stop promoting that advertiser.

Any advertisers with (inaccurately) ‘saved’ commissions from affiliate-channel sales not being tracked could lead to that advertiser losing out on the long-term benefits of performance marketing. After all, this is a pay-to-play industry. Embracing compliance isn’t just relevant to the advertisers’ legal requirements; it requires accompanying communication to the publishers to ensure long-term promotion, strong relationships and an underpinning of the very trust that’s at the heart of the  affiliate channel.

With CMP use ramping up, it’s an important moment for all participants in the affiliate channel to embrace the consent requirements. The resulting knowledge will ensure that users can continue shopping through affiliate links, with publishers having the confidence they are running their business with revenue matching expectations. This confidence underpins the efficient and successful use of the channel by networks and advertisers too. Without it, the channel will lose trust.

And without that trust, there’s the potential for a seismic moment in that advertiser’s use of the affiliate channel.

Steven Brown, Moonpull

Part One: The Tracking Conversation

Part Two: When to Appraise Tracking

Part Four: Publishers Control Affiliate Tracking

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