Without analytics there is no e-commerce. If you don’t know and understand your customer, you can’t sell your products in the best possible way. In a classic brick and mortar environment you can still gather a lot of insights about your customers by observing shopping behavior, tracking loyalty cards and monitoring inventory. In an online environment you can only do the same with a good analytics account.

That might seem self-evident, but unfortunately the government doesn’t share this view. Analytics accounts only function on the basis of cookies. The position of the Belgian Data Protection Authority (DPA) regarding the use of cookies – and in particular analytics cookies – has clearly been adjusted over the past few months. It used to be accepted that websites place analytics cookies without explicit permission. For several months now, the Belgian DPA communicates to the public that placing analytics cookies always requires the prior opt-in of website visitors.

Without data analytics you’re  navigating blindly through e-commerce

Many entrepreneurs discovered e-commerce only in the past few weeks. The Covid-19 crisis caused restaurant owners to switch to takeaway or delivery. Small businesses started their own webshop or began selling via one of the many new online platforms that want to support local entrepreneurs and local producers in these difficult times. 

These new digital merchants quickly learn one thing: without visitors to your webshop, you don’t sell anything. So you have to be easily accessible to your customer and you have to ensure that your webshop is set up so that it yields optimal results. It is therefore crucial to be able to measure the traffic to your webshop and the behaviour of visitors on your website as accurately as possible. 

Analytics allows you to see exactly how visitors end up on your website: via a Google search, one of your Adwords campaigns, via links on other sites or via your newsletter. Furthermore, your analytics account allows you to monitor the reactions and behaviour of visitors to your website and to make adjustments based on that: is your SEO good, don’t you spend too much on that SEA campaign that doesn’t convert anyway, does last week’s price adjustment have the desired success, does the new layout of a certain page work, …?

You’re navigating blindly without a well-designed analytics account. You don’t know where visitors come from, what pages and products they visit, how long they hang around, which ads work and which ones don’t, which products are presented well or badly or are priced correctly, … In other words, e-commerce is guesswork without good analytics.

But analytics requires cookies

That analytics account – whether it is Google Analytics or any other tool – works on the basis of cookies. These are small text files placed on your device the first time you visit a website and which then map your surfing behaviour.  

That’s exactly where the problem starts. In order to be able to place such analytics cookies, you need the prior consent of the visitor to your website. The first time someone visits your website you have to show a pop-up or an overlay in which you explicitly inform the visitor that you want to place cookies, what they are used for and that you request their permission to do so.

No pre-ticked consent means no cookies and that’s a big problem in an e-commerce environment.

After all, no analytics cookies means no data you can use to organize your sales and marketing, no insight into the origin of your visitors, no insight into the success of your SEO, your page layout or your pricing strategy, …

As a webshop, you also risk being left behind with uncontrollable advertising campaigns: no cookies also means a drastic reduction of audiences for retargeting campaigns, for increased bids in Google Search, for cross device campaigns and so on. Performance campaigns are 30 to 60% uncontrollable and can therefore no longer be optimized. This is not only a disaster for the e-commerce sector, but for every advertiser and his media or marketing agency. The real ROI of online investments is no longer measurable and extrapolations threaten to be completely wrong because the remaining data is no longer sufficiently representative.

So we just ask permission, right?

Right now you might be thinking, okay not a problem. Then we’ll just ask for an opt-in the first time someone visits our website, right? Of course you can. However, various studies and our own a/b tests with some of our clients show that, depending on the exact circumstances, between 30 to 60% of your website visitors don’t provide an active opt-in if you ask for it. This means that as a webshop you lose between 30 to 60% of your data by dutifully complying with the law…

Dura lex, sed lex…?

The above is undoubtedly a disaster for webshops, but the rules are clear. The Belgian DPA repeatedly drew attention to these rules in recent months. Just recently it published a cookie information page (not available in English, we are sorry for that) where it explicitly reiterated that analytics cookies always require a prior opt-in. The only time you don’t need this prior opt-in is when you place strictly necessary cookies. Strictly necessary means in this case that your website will not work (from a visitor’s point of view) without that particular cookie.

The Belgian DPA took the same position in the much-discussed Jubel case, in which a fine of 15,000 EUR was imposed because – in addition to a few other infringements – analytics cookies were placed without a prior opt-in. This was confirmed by the DPA’s members in various public appearances in recent months. For example at the LaFeweb event in Gembloux earlier this year.

The Belgian DPA’s position on analytics cookies is difficult to grasp. We are always the first to welcome privacy protection, but in this case a correct application of the law threatens to cause very large financial damage to an entire sector. Obviously, this cannot be the intention.  Furthermore, the governments in our neighbouring countries appear to be dealing with this problem in a considerably more nuanced way. In France, the Netherlands or Germany analytic cookies can be placed without a prior opt-in under a number of conditions. This causes double damage to the Belgian e-commerce sector. Belgian websites suffer a considerable competitive disadvantage compared to webshops in neighbouring countries, as they have access to detailed visitor data without having to break the law.

It is crucial for the sector to make its voice heard in this context. Fortunately, some sector federations in the e-commerce and online marketing sector have woken up to address the problem to the Belgian government. They began to lobby for a more flexible interpretation similar to that existing in our neighbouring countries. With respect for the privacy of consumers, but also with an eye for the commercial interests of the e-commerce sector.

And in the meantime?

Caution is advised. Make sure you have a proper cookie opt-in, not only for analytics, but for all cookies on your website. For more information, simply contact us at info@siriuslegal.be.