• by Ray Schultz , Columnist, 2 hours ago

Email senders are facing a scary overseas compliance issue: France is enforcing the guidance on tracking pixels that it had announced in April and fully implemented in July.

The Sheppard Mullin Richter & Hampton LLP law firm has issued a commentary in recent days that is also running on the JD Supra site. 

If you operate globally, it’s worth having your legal team look at this and how it applies to your firm. 

Pixels themselves aren’t the problem—you can use them to gauge open rates, detect fraud and understand customer preferences, JD Supra says, But you have to have consumer consent. 

This entails telling the user why the pixel will be utilized. And it must be done when the email address is collected or before emails are sent with trackers, JD Supra adds.

Moreover, the recipient must be given the chance to consent for specific reasons or other purposes—and the chance to opt out. 

Some activities do not need consent—for instance, for security-related user authentication or narrow list management tasks. 

But personalization and profiling do not fall into this category. 

This issue is hardly new.  Several years ago, the European Data Protection Board issued its guidance on tracking pixels. But France didn’t go along until April. At that time, firms were provided with a transition period for existing email lists that ended in July. 

In the U.S., companies have been contending with the California Invasion of Privacy Act (CIPA). Class action plaintiffs allege that CNN deployed third-party trackers that collected IP addresses and “dialing, routing, addressing and routing information,” Sheppard Mullin Richter & Hampton wrote in April. 

Again, you have to have your consent process in order.