The European regulator has relatively early on seen the potential privacy harms of cookies as means to facilitate the tracking and tracing of individuals as the browse the internet. The ePrivacy Directive regulates the use of cookies (amongst other mechanisms) in this respect, requiring the affected individual’s informed consent. The regulation has, so far, not been very successful in limiting the amount of tracking and tracing of individuals (primarily for the purpose of personalised, or behavioural advertising). It has been strongly opposed by the relevant industries, has seen a very low level of compliance and where compliance exists has been very slow in the making. Furthermore, ironically, the regulatory benefactors, individuals, have also opposed the regulation.

The battle to stop the unconsented tracking \& tracing of individuals seems particualrly lost now that the implementation of the cookie law’s requirement by and large seems to have moved from requiring the individual’s consent for the placement and use of cookies (thus providing the individual with a choice not to be tracked) to a mere acknowledgement that cookies will be used (and hence individuals will be traced, no matter what they want). The industry has succeeded in completely subverting and undermining the regulation’s aim. The ‘cookie law’ can thus be seen as an example of regulatory failure in the domain of privacy and data protection.

However, the cavalry might be around the corner. Although ad-blockers, which by and large also block tracking-cookies from being installed on the user equipment, have been around for some years, their use was until recently confined to techies and nerds. In the last couple of years this has been changing. Ironically, the popularity of Google Chrome goes hand in hand with the rise of ad-blockers on desktops (and laptops). Until recently, ad-blockers did not exist on one of the most important platforms for advertising revenues, iOS. This has changed with the launch of iOS 9 in mid September 2015. Suddenly ad-blockers are clearly on everyones agenda, either as threat or blessing. The adoption rate of both iOS 9 and Safari ad-blockers is stunning and might represent a significant factor to change the ad and tracing game altogether.

This contribution explores the ongoing cookie-wars by discussing the move from regulation to the market and code as modalities for the regulation of human behaviour.

Ronald Leenes (2015), The Cookiewars – From regulatory failure to user empowerment?, in: Marc van Lieshout & Jaap-Henk Hoepman (eds), The Privacy & Identity Lab; 4 years later, Nijmegen: The Privacy & Identity Lab, pp. 31-49, ISBN: 978-90-824835-0-5. available here: