European Union: How The Cookie Crumbles

Last Updated: March 19 2012
Article by Melanie Eggers, Christophe Fichet and Leslie J. Milton

In December 2009, European Directive 2009/136/EC (the Directive) entered into force requiring all countries of the European Union (EU) to enact national legislation requiring, amongst other things, that website owners must obtain informed consent for the use of cookies by their website before any cookies are planted on the user's computer hard drive. This means that website owners must now provide users with an upfront way to opt-in for cookies, and must ensure no cookies are used unless the user has provided their consent expressly (strict opt-in) or perhaps impliedly. Previously it was sufficient that users were provided with a facility to opt-out if they sought it out. The deadline for national implementation of the Directive was 25 May 2011, but the period for website compliance expires on 25 May 2012.

The new requirements need to be considered by all website owners, worldwide, to determine what changes (if any) need to be made to their website to avoid coming within the scope of these provisions (eg: ensuring their site functions without cookies, or ensuring their site cannot be construed as targeting the EU) or to comply with the provisions (eg: providing users with a clear, upfront opportunity to consent to the use of cookies, or only using cookies that fall within an exception to the rules).

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.

Although cookies cannot act as viruses, as they are not pieces of code and cannot perform functions (they are merely read), they can act as a form of spyware in recording a user's browsing patterns, preferences and volunteered personal information without their knowledge, which is why anti-virus and security software will routinely flag them for deletion. It is this concern over privacy, and the collection of a user's data without their knowledge, that has prompted reform of the law governing the use of cookies in relation to citizens of the European Union.

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.

You may believe that your website does not use cookies if it does not perform any of the following functions:

  • 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
  • in order to comply with the Directive, a cookie recording if a user has consented to the use of cookies on the website or not.

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:

It is also important to consider how the use of cookies is regulated in other major jurisdictions that a website could be considered to target. The law in Canada has been recently revised such that prior express consent to the use of cookies will be required. Specific advice on the position in Canada can be obtained from Fasken Martineau's Canadian offices. In the US, guidance from the Federal Trade Commission (FTC) and some state Attorneys General suggests that use of cookies should be disclosed in a website's privacy policy and use of cookies that collect personal information require the user's consent and the provision of an opt-out mechanism, but again we recommend obtaining advice specific to a website.

4. Action to be taken

At a minimum, all websites using cookies should have a clear description of how cookies are used by that site. Further, if any of the cookies used collects personal information from the user, the website should have a privacy policy.

However, to ensure compliance with the Directive, when a user accesses a website that uses cookies it should contain a clear request for the user's consent to the use of cookies. For websites that already require a user to agree to their terms and conditions before they can access the site, consent to cookies can simply be incorporated into the terms and conditions. For all other websites, a banner or a pop-up containing a tick box is likely to be the best solution, although to date the pop-up option has proved unpopular with the public. A good example of an effective banner is the ICO's:

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.