1. What are Cookies?
Cookies are text files created when a person (the user) accesses a website. The file is stored on the hard drive of the user's computer, in the web browser's directory folder. This file gives that website a 'memory' so that, when the user navigates or returns to the relevant website, the website's server can access the file and retrieve the information stored in it to perform certain functions. The cookie may be necessary for the webpages to display and function properly, or may merely enhance usability of the website for the user, by helping them resume where they left off previously or customising the website with their preferences.
Some cookies (known as "session cookies") are only temporary, storing only information about a user's webpage activities during that browsing session. Session cookies are erased when the user closes their browser and the user will not be recognised by the website if they return. Other cookies (known as "persistent or tracking cookies") remain in the browser's directory folder, storing the user's preferences to be accessed again by the website when the user returns. Persistent cookies have a duration period after which they are deleted by the user's computer or the user can delete them manually at any time.
2. Why your business needs to take action
The Directive should have been implemented in all countries of the EU by 25 May 2011. Whilst not all EU countries have done so, ultimately the Directive, and therefore the requirement for prior informed consent, will apply in all 27 EU countries. In the UK the relevant laws came into force on 26 May 2011, with the Information Commissioner's Office (ICO) providing a 12 month grace period for website owners to ensure their compliance before it will commence enforcement action. The ICO has stressed that they will not tolerate website owners ignoring the new law or refusing to take action.
Compliance with the provisions of the Directive is therefore required for:
- any business operating within the EU; or
- any website that does not define a target market, targets an international audience, or could reasonably be considered to target the EU.
- have a secure area that users log-in to;
- have a shopping cart / basket facility; or
- run ads, widgets or other elements from third party websites.
However, even the simplest websites may be utilising cookies for one or more of the following functions:
- user's performing searches on the website;
- tracking which pages a user has visited;
- collecting general statistical information about the use of the website or the number of viewings of particular items contained on the website (these will be in use by your site if you use Google Analytics or any similar software);
- remembering user's preferences, such as how many search results per page they would like to view;
- access to secure or privacy-enhanced areas of the website (those whose domain strings begin with "https"); or
The technical administrator of your website will be able to provide you with details of the cookies your website requires to function, or any other locally stored objects, HTML 5 local storage objects or web beacons which are also covered by the Directive.
3. Current territorial scope of cookies regulation
To date, the implementation of the Directive across the EU has been as follows:
4. Action to be taken
In some countries, such as France, stricter opt-in provisions may apply, such as specific consent to each cookie and implied consent being unsatisfactory. The use of some cookies, depending upon the particular circumstances, may fall within exceptions to the Directive. In light of the different regimes in operation, the different target users and different cookie requirements of each website, it is best to take specific advice on which solutions are best suited to your business needs.
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.