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Mid July saw the chill winds of EU infringement procedures blow across much of Europe. The European Commission took first steps in proceedings against twenty EU Member States1 for their failure to fully implement into their national laws new EU telecoms rules which amend the ePrivacy Directive2 in respect of the use of technologies, like 'cookies', for storing information on internet users. Alongside the UK, only Denmark, Estonia, Finland, Ireland, Malta and Sweden were able to bask in the warm glow of having implemented the new rules in full by 25th May 2011. Given the fundamental changes relating to the use of cookies required by the amended Directive, achieving the deadline is no mean feat for the seven Member States.
In the UK we now have the Privacy and Electronic Communications (EC Directive) (Amendment) Regulations in effect3 ('Regulations'). However, on closer examination, compliance with this new UK legislation is not as settled as might be hoped, with the outlook clouded and liable to change. The UK Government has timeously implemented the amended ePrivacy Directive provisions. However, at the Government's request4, the UK Information Commissioner's Office ('ICO')5 has provided for a 12 month moratorium on the use of his relevant enforcement powers in respect of the use of cookies while organisations try to establish means of conforming to the new requirements of the Regulations.
Cookies rising; Legislature concerns
Since the original ePrivacy Directive, internet use has continued its upward growth path6. This trajectory is mirrored in the rise of technologies which store information on users to facilitate website personalisation, such as targeted advertising. Underpinning many of these technologies are 'cookies'. These are small files of letters and numbers downloaded on to a user's computer on accessing a website. Cookies do not collect information, but they do allow websites or advertising serving networks to recognise, amongst others: a user's computer as the user browses; a user's computer on subsequent browsing sessions on that website; and profile where that user has been browsing7. For Europe's lawmakers concerns arise that users' privacy is somehow being infringed by the rising use of data recorded relating to users' interactions with websites.
ePrivacy Directive change
As was the case prior to its revision, the revised ePrivacy Directive permits cookie use which is 'strictly necessary' in order for the provider of an 'information society service', such as a website, which is explicitly requested by a user to provide that service. However, the ePrivacy Directive has been revised such that all other cookie use is only permissible where the user has notice of, and the ability to opt out of, such cookie use. Addressing concerns for user privacy, the revised ePrivacy Directive now requires all other uses of cookies to be premised on a user's 'consent, having been provided with clear and comprehensive information...about the purposes of the processing'.8
UK Implementation
The revised ePrivacy Directive is implemented into UK law through the Regulations. When drafting the Regulations, the UK Government through the Department for Culture, Media and Sport ('DCMS') stayed consistent to its intentions as set out in its September 2010 consultation by 'copying out the relevant wording of the Article9' requiring users to consent to cookies which are not strictly necessary. This move from 'opt out' to 'opt in' for cookie use brings into sharp focus the issue of how the necessary consent of users can be obtained. Previously this was managed through a combination of explanation in website privacy policies and users' abilities to set browsers to: 'block' cookies; enjoy 'private' browsing; or delete all cookies from time to time. Now the challenge shared by all websites operators is how to ensure cookie use is consensual.
User consent – exception.
As counsel to organisations offering websites to consumers or business users, readers' organisations face this challenge now. Some comfort can be taken from the continuing exemption where cookies are 'strictly necessary' for a service requested by the user. However, in its (non-binding) guidance on the 'Changes to the rules on using cookies'10, the ICO has confirmed that what is 'strictly necessary' has narrow characteristics. Firstly, the cookie must be necessary to the service and not ancillary or even used in optimising the service. Secondly, the cookie must relate to a service requested by the user. From this, functionality such as tracking a user's progress through a website purchase path is likely to have the necessary characteristics to fall under the exemption; cookies capturing analytical data for use by the website provider's operating purposes is not.
User consent – third party cookies
Unlike cookie use necessary to provide services, no exemption from the need for user consent applies to the serving of third parties' cookies. Just as a user must consent to a website operator's cookies, they must also consent to any cookies placed by third parties through that website. This is especially relevant for website displays of advertising network content and particularly the growing use of behavioural advertising by online advertisers to target relevant audiences. In this regard, the DCMS has publicly stated its support for cross-industry work on third party cookies in behavioural advertising11. Initiatives, such as IAB Europe's 'European self-regulatory Framework for Online Behavioural Advertising'12 ('Framework'), outline good practice through websites providing transparent user control. The Framework establishes obligations that all online behavioural display advertisements must contain an icon which alerts users that cookie based online advertising is in use. Clicking on the icon directs users to a website with information on how to turn off these advertisements. While the Framework is only binding on signatory companies, these include many of the main players in this type of advertising which are now obliged to implement the icon by June 2012. The Framework is complemented by the European Advertising Standards Alliance's (EASA) Best Practice Recommendations13 which sets out cross-advertising industry best practice for online cookie based advertising. Website operators may wish to confirm their advertising provider partners' compliance with the Framework and Recommendations as part of offering compliant websites to users.
User consent - browsers
As above, common practice prior to the Regulations was for website providers to rely on users 'opting out' of cookie use through their browser settings. Privacy policies commonly directed users to find out how to do this if they did not want cookies or other identifying technologies used on them. Browser based consent has not disappeared with the revisions to the ePrivacy Directive. Recital 66 of the Directive revising the ePrivacy Directive states 'the user's consent to processing may be expressed by using the appropriate settings of a browser or other application'14.
This recital has served to fan a debate on the issue of browser consent to cookie use. The revised ePrivacy Directive's silence on whether consent need be 'explicit', leaves open the argument that consent can be 'implicit' in browser settings. Perhaps unsurprisingly, this interpretation is favoured on an EU wide basis by advertising industry bodies such as the IAB Europe which seeks to support this view through educational materials, sessions and resources such as the 'your online choices' website15. However, it is difficult to align much of what is available to website users with the revised ePrivacy Directive's requirements to provide clear and comprehensive information. The Article 29 Working Party16 has singled out the matter of informed consent in the 'browser consent' debate. Its Opinion17 on 'Online Behavioural Advertising' revisits the Data Protection Directive18. It confirms its members believe such consent should be: freely given; specific; informed; a clear and positive indication of the user's wishes. Taking these criteria in combination, it is an easy progression to the Working Party's position that browser settings may only deliver consent in very limited circumstances which are far removed from general browser operation today.
Alongside implementing the Regulations the DCMS issued an 'Open Letter'19 on the new regime relating to cookies. In its Open Letter, the DCMS discussed browser consent and recognised:
- users need to be provided with appropriate information on how browsers operate to allow an informed consent
- if such information is present, users may signify consent through:
- the choices they make on their browser settings or controls; or
- choosing not to amend settings or controls of a browser.
DCMS acknowledged that even if a browser based solution to the issue of consent is possible, many users may not readily understand browser setting use. In recognising the possibility of browser consent in the future, the DCMS also acknowledged that current browsers will need to be enhanced to meet the requirements of the revised ePrivacy Directive. Development of browser usability to enhance browsers in this way, such as that being undertaken by Microsoft in respect of its Internet Explorer version 9 and Google for its latest 'Chrome' browser, will be pursued by the Government in collaboration with industry. Evidently browser consent is one option which DCMS would like to be available, but for now, DCMS is aligned with the ICO in that: 'At present, most browser settings are not sophisticated enough to allow you to assume that the user has given their consent to allow your website to set a cookie'20. So for the time being, browser consent should not be relied on for non-essential cookie use.
User consent – considerations
Counsel advising their business colleagues must therefore consider alternate means of ensuring they have users' consent to cookie use. Key considerations for the ICO in this regard are that the means adopted to capture user consent:
- provide information about the cookies;
- obtain consent when a cookie is set for the first time; and
- are appropriate for the use being made of the cookie information.
The ICO also confirms its opinion that once consent to a particular cookie use is obtained, it need not be requested again for use of the same cookie for the same purpose, with a consenting user.
User consent - other means
The ICO has identified21 the following non-exhaustive variety of techniques which it believes are legitimate means of capturing user consent to cookie use:
- pop up/interstitial screens – making users consent to cookies in a separate screen before progressing with their browsing session. This method has the benefit of a high degree of certainty as to consent granted, but is likely to suffer an equally high degree negative impact on the user experience on any website;
- websites' terms of use – mirroring the way many websites have users agree to terms of use on first use or registration, similar techniques could be adopted for cookie consent. The ICO is clear though, that users would have to 're-consent' to any revised terms relating to cookie use and that these cannot just be added to previously accepted terms of use. The ICO expects a 'positive indication that users understand and agree to the changes'22;
- website set-up – as with acceptance of terms of use on initial website use, website operators often interact with users to facilitate user choice as to how the website is set-up for that user.
This interaction provides another opportunity for website operators to give users choices, explain how those choices are brought about by cookies, and obtain the user's consent to that functionality:
- specific website features – if a website has specific features which require cookie download this point of interaction with the user also creates a chance to get users' informed consent to the relevant cookie. This can be evidenced through a number of user actions so long as the action follows the user being informed that their undertaking of the activity – clicking 'yes', pressing 'play', opening a link or switching a feature 'on' – will result in cookie use.
Compliance timing
Both the DCMS and the ICO have recognised that regardless of the method(s) adopted by website operators to obtain consent, implementing the necessary cookie consent changes is not a simple matter, nor one which should be undertaken without due consideration. As a consequence the DCMS has agreed that the ICO should not fully exercise its powers under the Regulations until late May 201223. However, neither Government nor the ICO view this period as one where parties offering websites should be inactive. Indeed the limits on instigation of the ICO's enforcement actions apply only to 'organisations that are working to address their use of cookies or are engaged in development work on browsers and/or other solutions'.24 If the ICO receives a complaint about a website's current use of cookies, it expects the website's operator to be able to explain what planning has been undertaken to achieve compliance with the Regulations. The ICO has confirmed it may issue warnings to website operators which cannot provide such an explanation. All such warnings will then be taken into consideration should any ICO enforcement action be necessary against those website operators post May 2012.
So what now?
From the above, it is evident that for organisations which operate websites and which are subject to the Regulations, doing nothing about cookie consents until May 2012 is not the best policy. The ICO clearly wants website operators to be considering how to comply with the Regulations now. In particular, the ICO has proposed the following three step process:25
- understanding the organisation's cookie use - auditing: where cookies are used; the purposes for which they are used, including whether they are strictly necessary; and whether they need to be used;
- reviewing the impact on users of the cookies served – the ICO believes that as the intrusions on a user's privacy by a cookie from a website increases, so the website's operator must give a greater priority to obtaining the user's consent to that cookie, e.g. the ICO considers creating detailed user browsing profiles as intrusive and so requiring a higher priority for obtaining consent;
- select the appropriate consent collection mechanism – from the outcome of the first two steps website operators must pick how best to satisfy the requirements on them for user consent to cookie use having regard to the purpose of the cookies – more intrusive cookies need more effort to get consent.
All website operators would be well advised to commence this process, if they have not yet, as without this understanding and amendment to website activity to comply with the Regulations, come next spring, the chill winds of regulation could turn their way.
Footnotes
2. See Directive on Privacy and Electronic Communications (2002/58/EC) at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32002L0058:EN:HTML
3. See SI 2011/1208 at http://www.legislation.gov.U.K./U.K.si/2011/1208/contents/made
4. See http://www.culture.gov.uk/images/publications/cookies_open_letter.pdf
6. Increasing 353% between 2000 and 2011, see http://www.internetworldstats.com/stats4.htm
7. For more information about cookies see: http://www.allaboutcookies.org/
8. See Article 5(3) at http://register.consilium.europa.eu/pdf/en/09/st03/st03674.en09.pdf
9. Ibid
11. See footnote 4
12. See http://www.iabeurope.eu/media/51925/iab%20europe%20oba%20framework_merged%20ii.pdf
13. See http://www.epceurope.org/presscentre/archive/easa_bpr_oba_12_april_2011.pdf
14. See Recital 66 at http://register.consilium.europa.eu/pdf/en/09/st03/st03674.en09.pdf
15. See http://www.youronlinechoices.eu/
16. The forum of European data protection regulators set up under Art. 29 of the Data Protection Directive (Directive 95/46)
17. Opinion 2/2010 on online behavioural advertising issued 22 June 2010. See - http://ec.europa.eu/justice/policies/privacy/docs/wpdocs/2010/wp171_en.pdf
18. http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31995L0046:en:HTML
19. See footnote 4 for letter of 24 May 2011
20. See footnote 10
21. See footnote 10 et seq
22. Ibid
23. See footnote 5
24. Ibid
25. See footnote 10
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
