The Information Commissioner's Office (the "ICO") has recently issued updated guidance on the steps website providers need to take in order to comply with the new cookie regulations1. Under regulation 6(1) and (2) of the Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2011 (SI 2011/1208) (the "Regulations") the new regime is that user consent is now required by website providers who wish to use non-essential information storage technologies, like cookies, as part of their website operations. This commentary should be read in conjunction with our KL Bytes: "Cookies Cut?" article of September 2011 which outlined more fully the new regime on the use of cookies and similar technologies2.
The latest ICO guidance published on 13 December 2011 provides website providers and users with a fuller explanation on how the ICO intends to apply the Regulations. While the twelve month moratorium announced in May 2011 remains in place with the ICO are expecting website providers to demonstrate sensible, measured action to show compliance with the Regulations no later than the moratorium's expiry3.
Some of the more notable areas of guidance are discussed below..
Consumer awareness
Throughout the ICO's updated guidance there is a focus upon what the current level of users' awareness is in relation to cookies and their purposes. The ICO takes the positions that: (i) at present this level is only a limited understanding (supported in the main part by a Department for Culture, Media and Sport commissioned PricewaterhouseCoopers online survey of February 2011 into the potential impact of cookies regulation4) and (ii) only by establishing this level can website providers establish the necessary steps that they must take to comply with the Regulations. From this it is possible to extrapolate that as the average user becomes more au fait with cookies that the requirements on website users may decrease.
However, for now, given users' limited awareness, website providers are required to provide the user with comprehensive information concerning the existence and purpose of the cookie(s) being used. Therefore the information requirements on website providers will, in the short term at least, be higher than many website providers first anticipated and additional steps should be made now to ensure that websites are fully compliant.
Prior consent
The guidance highlights that in the vast majority of situations the ICO expects the website user to obtain prior consent before the cookie(s) can be set. The rationale for this stance is that users will expect to have an option whether to accept cookies before the activity, for which the cookie will be used, has already taken place. The ICO does recognise that in certain circumstances websites set cookies simultaneously with the user visits the website. Before setting the cookie the website provider must also determine whether there is a possibility of delaying the setting of the cookie until such time as the user has understood the purpose of the cookie and made an election as to whether to grant consent. Where the website's operation requires that a cookie be set prior to consent being obtained, the website provider must give the required information, as to the existence and purposes of the cookie(s) to the user as soon as possible after the user visits the site.
In addition to the requirement of making such 'after the cookie fact' information clear and comprehensive the website provider must make this information readily available to the user. This give rise to the possibility that consent to a cookie placement need not be prior to that placement provided:
- it is not practicable to obtain a prior consent because of the website's functionality; and
- the user is fully and readily informed of the cookie placement
This goes further than had previously been interpreted from the Regulations and stretches the limited means of complying with the Regulations.
Implied consent
The ICO again highlights the issue of existing levels of user awareness in relation to the type of consent that the website provider can rely upon. The guidance says that reliance on implied consent has to be based upon a full understanding by the user that the cookies will be set and their purpose for which they grant their consent..
With the current levels of understanding it is not advisable for website users to entirely rely on implied consent.
Consent from the user or subscriber
Further details as to the party from whom the consent needs to be received from are given in the ICO's guidance. The Regulations state that consent must be obtained from the subscriber (person who pays the bills) or the user (person accessing the website). The ICO is aware that the reality is that the website provider will usually be unable to distinguish between the consent given by the subscriber or the user. The ICO states that the key is to show that valid (prior) consent has been provided by at least one of the subscriber or user.
The ICO guidance highlights that a situation where the subscriber has given consent but a user complains about the use of cookies without their consent, In this scenario, the Regulations will have been complied as long as the website provider can show that consent was previously obtained from the subscriber. While the Regulations do not specify whether the inconsistent requirements of user or subscriber should prevail, the guidance recognises that the Regulations generally refer to the subscriber as the party making decisions, such as with regard to browser subscription, and so its preferences should be followed.
Exceptions from requirement to obtain consent
The ICO has given some further detail as to the activities that are likely to, and likely not to, fall within the 'strictly necessary' exemption under with consent is not required. The guidance continues to require the activity to be one which is essential rather than reasonably necessary in order for the exemption to apply.
Activities within the exemption include cookies required to remember goods added to the user's basket will be exempt. In addition the ICO has specifically exemplified security cookies which are required to comply with the seventh data protection principle, where the activity has been requested by the user such as online banking services. A third example of an exempt activity is cookies which help ensure content on the website loads quickly and effectively by distributing the workload across a number of computers.
In addition the ICO has said that examples of activities which will not fall under the exemption umbrella include cookies used for analytical purposes, first and third party advertising cookies and cookies used to recognise users in order to tailor the greeting that the user receives when accessing the site.
Browser settings
The debate over whether the user's choice of browser settings is sufficient to imply consent is discussed in more detail in the latest ICO guidance. The Regulations themselves suggest that browser settings can indeed be utilised as a method of obtaining consent. The ICO guidance however firmly suggests that at the present time this is not an option that website providers should rely upon. The browser settings used by most users are not sophisticated enough to be relied upon. This situation may change as new browsers are used and understood by users, however a potential issue will be the lag before all users visiting the website are using sufficiently up to date browsers.
Third Party cookies and contracts
The ICO guidance envisages that where a third party cookie is used on a website that there will be a co-operative effort between the third party cookie provider and the website provider to obtain the necessary consent. As the ICO notes, "The key point is not who obtains the consent but that valid, well informed consent is obtained". While the emphasis under the Regulations is on the party dropping the cookie to obtain consent the practicalities are that the user will have little or no direct interface with the third party. As such the ICO recognises that there will likely be a rise in contractual obligations imposed on in respect of the requirements of the Regulations both on:
- parties responsible for setting third party cookies to provide information about those third party cookies and obtain consent to them; and
- website technology providers to ensure their technologies facilitate their customers in complying with the Regulations.
Positive action from the user
One of the most interesting aspects of the guidance is the apparent acceptance of an enhanced notice and transparency approach. The initial indications were that website providers required a positive action such as ticking a box or an accept button. However it now appears that the ICO guidance will also deem consent where the user continues to use the website having being properly warned about cookies – the positive action of consent being the continued use. The ICO guidance suggests that where this option is chosen it would be prudent to include a notice elsewhere on the site which reminds the user that the website provider is setting cookies.
The guidance also endorses the use of terms and conditions as a method of providing the necessary information and obtaining consent from the user.
User consent for more than one website or cookie.
Interestingly the ICO guidance also raises the possibility that consent can be obtained for a series of websites or cookies of a similar type at one time. For example where a company has a series of connected websites they would be able to obtain consent for cookies both on the site (that the user was logged in) and other sites at the same time as long as it was made clear which websites the cookies were being used and for what purpose. The important aspect, as ever, is that the user must be aware of what they are agreeing to. Consent can also be given on a per category basis and does not need to be for each cookie individually. Once again the emphasis is on ensuring that the user has the functions and purposes of the cookie(s) clearly explained to them..
Conclusion
While the ICO guidance is help in terms of providing further details as to how they will enforce the Regulations the reality is that the guidance contains little in way of substantial changes from the May guidance. It does, however, offer some practical examples of utilising the various consent mechanisms identified in the first guidance, namely through terms and conditions; pop-ups; website settings; and website features.
As highlighted above an interesting aspect of the latest guidance is the suggestion that the Regulations will be enforced in a different, and arguably lighter, fashion once there is a greater widespread user understanding of what cookies are and their purposes. This echoes a general theme of the guidance that the ICO expects means of compliance to alter as technologies (including browsers) and business practices adapt and develop to accord with the requirements of the Regulations – this will be a topic to continue to review. In the interim, in closing website providers are encouraged by the ICO to continue to prepare their websites for compliance as soon as possible in advance of the expiry of the moratorium period in May 2012. That's a piece of guidance website providers should follow.
Footnotes
2.see - http://www.kemplittle.com/html/stay-posted/publications/kl-bytes/September%202011/cookies-cut.html
4. see - http://www.culture.gov.uk/images/consultations/PwC_Internet_Cookies_final.pdf
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.
