Are Tracking Pixels New, More Insidious Cookies?

The public now has a general understanding of cookies and the right to opt out, and organizations have adapted to increased regulatory scrutiny around cookies. In recent years, a significant decline in user tracking information received has led organizations to explore tracking solutions other than cookies. Many organizations are phasing out the use of cookies and opting for new digital marketing strategies. There appears to be a trend towards using tracking pixels as a preferred data collection solution; but companies may not fully understand their data protection obligations or fail to implement compliance policies around pixel use.

Pixels vs. Cookies

A tracking pixel is a tiny, invisible pixel embedded into the HTML code of a website, email, or ad; it silently collects user data, including sensitive data like health information. 

Cookies are small data files stored on an end user’s device when they visit a website. Cookies remember user preferences and personal information like username and password; it stores that information on the user’s hard drive and later retrieves the data. 

Enhanced Privacy Compliance Risk

While pixels are not (yet) as heavily regulated as cookies, the compliance risks associated with tracking pixels are significant and noncompliance can be more challenging to remediate. Cookies collect user personal information on the end user’s web browser and use the data for marketing purposes and to improve user experience. Users can disable cookies and cookies cannot follow users across devices. Tracking pixels, on the other hand, collects user personal information and delivers it to a server, uses the data for marketing purposes only; users cannot disable pixels, and pixels can follow the user across devices. 

Regulatory Obligations around Pixel Use

Pixels are not just a marketing tool; they are a regulated integration. As such, they trigger regulatory obligations that require elevated ownership and responsibility. EU data protection laws like the GDPR and the ePrivacy Directive require explicit consent for pixel use, while US laws like California’s CPRA and Virginia’s VCDPA require an opt-out mechanism for end users. Canada’s Consumer Privacy Protection Act (CPPA), Brazil’s LGPD, and emerging APAC privacy frameworks also contemplate data privacy and security controls around pixel use. Given the invisible and miniscule nature of tracking pixels, it is extremely difficult to detect pixels, which will make explicit user consent, data transparency and minimization principles and honoring data subject access request regarding tracking pixels, almost impossible. Companies remain responsible for compliance with data privacy legal and regulatory obligations around data collection, especially behavior-related data.

What Actions can Organizations Take to Maintain Compliance

1. Know What Tracking is Taking Place Across Digital Assets – Conduct a pixel and cookie audit to identify and inventory active data trackers across the organizations’ web assets. For HIPAA regulated entities, map the pixels against the HHS OCR tracking guidance and HIPAA definitions.

2. Review and Repaper Third Party Contracts – refresh cookie-related contract language to include “other technologies” or “pixels.”

3. Deploy Technological Safeguards Before Deploying Pixels – In the EU and UK, implement consent banners that block non-essential trackers until opt-in, with equal prominence and ease to accept or reject/withdraw consent.

4. Be Proactive – create a culture where data privacy and cybersecurity teams regularly liaise and collaborate.

5. Monitor Compliance – Implement ongoing monitoring procedures and periodic reviews and informal audits.

Pixels are tiny, but the risk associated with their use is enormous. By designing consent-first deployment strategies, implementing robust technical controls, tightening contractual posture, and continuously monitoring deployed trackers, organizations can begin changing an invisible threat into a governed, auditable data flow.

If you have questions about how these issues impact your organization and its stakeholders, QuisLex Advisory can help. Contact us here.