How do EU cookie laws affect your business?

Storing user-related data is only permitted under the EU Cookie Law (also known as the ePrivacy Directive) if users give their explicit consent. This opt-in process is therefore mandatory—at least for tracking cookies if you do business in the European Union. But what is the current legal status?

What does the EU Cookie Law say?

In the European Union, Directive 2009/136/EC is intended to ensure and strength­en the pro­tec­tion of personal data. The cookie data law es­sen­tial­ly requires that website visitors be clearly informed about the use of cookies and must consent to their storage.

According to the directive, cookies may only be set without prior consent if they are tech­ni­cal­ly necessary—for example, to deliver a service ex­plic­it­ly requested by the user. This includes cookies like session cookies used to store language pref­er­ences, login cre­den­tials, or shopping cart contents, as well as Flash cookies for media playback.

However, for the use of most other cookies, website operators must obtain user consent. This applies to any cookies not essential for the operation of the website. Most notably, this includes ad­ver­tis­ing cookies used for re­tar­get­ing, as well as analytics and social media cookies.

What’s included in the current EU Cookie Law

With its cookie law, the European Union aims to protect the personal data of internet users. In general, a dis­tinc­tion is made between tech­ni­cal­ly necessary and non-essential cookies:

1. Tech­ni­cal­ly necessary cookies: These include cookies that are essential for the core functions of a website. Examples include storing login cre­den­tials, shopping cart contents, or language pref­er­ences using session cookies (which are deleted when the browser is closed).
2. Non-essential cookies: These refer to text files that serve purposes beyond the website’s basic func­tion­al­i­ty. Examples include:

• Tracking cookies that collect data such as user location
• Targeting cookies that tailor ad­ver­tis­ing content to the user
• Analytics cookies that gather in­for­ma­tion about user behavior on the site
• Social media cookies that link the website with platforms like Facebook, Twitter, etc.

According to the EU Cookie Law, necessary cookies may be set without prior consent. However, visitors must give their explicit consent before non-essential cookies can store any data. As a result, the directive requires an opt-in approach for non-essential cookies. These cookies must not be set unless and until the user agrees to their use.

How U.S. busi­ness­es comply with the EU Cookie Law

U.S.-based companies that operate websites ac­ces­si­ble to users in the European Union—or work with EU-based business partners—must ensure com­pli­ance with the EU Cookie Law and General Data Pro­tec­tion Reg­u­la­tion (GDPR). Even though the U.S. does not have a federal law equiv­a­lent to the EU’s ePrivacy Directive, American busi­ness­es are subject to these reg­u­la­tions when pro­cess­ing data from EU residents.

Key com­pli­ance measures for U.S. busi­ness­es

To align with EU cookie and data pro­tec­tion laws, U.S. busi­ness­es typically take the following steps:

1. Implement a cookie banner with opt-in func­tion­al­i­ty
   Users must actively consent to the use of non-essential cookies (e.g., for analytics or ad­ver­tis­ing). The banner should clearly describe the types of cookies in use and provide a way to accept or reject them.

2. Granular consent man­age­ment
   Provide users with the ability to customize which types of cookies they accept (e.g., func­tion­al, an­a­lyt­i­cal, marketing). This is often managed via a Consent Man­age­ment Platform (CMP).

3. Maintain a detailed cookie policy
   The website should include an ac­ces­si­ble and trans­par­ent cookie policy that explains:

   • What cookies are used
   • Their purposes and duration
   • Third-party in­volve­ment
   • How users can withdraw or modify consent

4. Geo-targeted com­pli­ance
   Some U.S. busi­ness­es choose to display consent banners only to visitors from the EU. This is achieved via IP-based ge­olo­ca­tion tools, which help ensure that EU users receive ap­pro­pri­ate privacy notices while avoiding un­nec­es­sary friction for U.S.-only users.

5. Doc­u­men­ta­tion and record­keep­ing
   Keep logs of consent records in case of audit or legal inquiry, as required by the GDPR’s ac­count­abil­i­ty principle.

For a full overview of cookie re­stric­tions and other data pro­tec­tion laws in the US, you can refer to the usa.gov privacy, security, and ac­ces­si­bil­i­ty policies page.

What are cookies and what data do they collect?

Cookies are small text files that a browser stores on a user’s device when visiting a website. They save in­for­ma­tion related to your visit, enhancing user ex­pe­ri­ence—for example, by re­mem­ber­ing your login cre­den­tials or language pref­er­ences so you don’t have to re-enter them each time. While cookies provide con­ve­nience, they also raise privacy concerns. Many are used to track specific aspects of user behavior online, enabling features like per­son­al­ized ad­ver­tis­ing. Tracking and targeting cookies in par­tic­u­lar are fre­quent­ly crit­i­cized by privacy advocates.

A typical cookie includes in­for­ma­tion such as the lifetime of the file and a randomly generated ID number that helps the website recognize your device. In most cases, data stored by cookies is anonymized. Per­son­al­ly iden­ti­fi­able in­for­ma­tion (PII) is only collected when a site requires you to log in.

Want to know how to delete stored cookies from your browser? Watch this video:

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What does the future hold for cookie data?

For years, the European Union has been working on the ePrivacy Reg­u­la­tion to establish uniform rules for the use of cookies and other tracking tech­nolo­gies. Orig­i­nal­ly, the ePrivacy Reg­u­la­tion was intended to come into force alongside the General Data Pro­tec­tion Reg­u­la­tion (GDPR), but its im­ple­men­ta­tion remains uncertain.

Until the ePrivacy Reg­u­la­tion is formally enacted, cookies that can be used to identify users—through ID numbers, be­hav­ioral profiles, or tracking mech­a­nisms—fall under the de­f­i­n­i­tion of “personal data” as outlined in Chapter 1 of the GDPR. This applies to any company—inside or outside the EU—that collects or processes such data from in­di­vid­u­als located in the EU.

Please refer to the legal dis­claimer for this article.