UK: Further ICO Guidance On The Use Of Cookies

Last Updated: 25 January 2012
Article by Mark Alsop

The ICO's half term report (half term because it is six months since the new law came into effect, and six months until the ICO has said it will start to enforce the new legislation). The Commissioner makes it clear that he is disappointed with the level of engagement by website owners to date and has issued a clear warning that his office will still investigate complaints now and will take into account the steps already taken by website owners.

The guidance tackles the following subjects:

  • Terminology, including an explanation of the different types of cookie.
  • What is meant by consent and when it should be obtained. Consent will normally have to be prior consent (which is directly contrary to Government guidance issued in May) – and it should certainly be given as soon as possible after the user accesses the site. It is unlikely that implied consent will be sufficient for the time being – general awareness of the functions and uses of cookies is simply not high enough.
  • Differences between the 2003 Rules and the 2011 Rules.
  • Exceptions from the requirement to provide information to obtain consent (this is mainly the "strictly necessary" exemption).
  • Responsibility for compliance. The person setting the cookie is normally primarily responsible, but there is discussion about how this can happen with third parties who have no direct interface with the users. It is suggested that third parties may wish to impose contractual obligations on the website publishers to take steps to provide information about third party cookies and obtain consent.
  • Privacy settings. At present most privacy settings are still not sophisticated enough for websites to assume that consent has been given to allow the site to set a cookie.
  • There is then a list of practical advice. This is similar to the previous guidance from May 2011 and consists of checking the types of cookies used and how they are used, assessing how intrusive the use of these cookies is, deciding what solution to obtain consent would be best in the circumstances, conducting a cookies audit, following information about cookies, getting consent in practice.
  • In relation to obtaining consent, there is considerable detail, including examples of screen layouts that could be used, such as websites with footer bars and links to privacy policies (although the latter in particular will often not constitute a specific and informed consent). Consents can be settings led or features led.
  • There is a section on third party cookies with some possible mechanisms for gaining consent.

The ICO does state that it will consider issuing more detailed advice if appropriate in the future, but it does not intend to issue prescriptive lists on how to comply. Website operators are best placed to work out how to get information to its users, what the users will understand and how they would like to show what they consent to what the website intends to do.

Overall, the ICO has changed its stance to be rather closer to the views of the Article 29 Working Party (of which it is a member and which has taken a strict view of the new requirements). Originally, the impression given by the ICO was that the legislation was an irritant that had to be complied with as best one could. Now it is much firmer that compliance is to be expected. The Government view was even more sceptical. We wait to see if it's stance has also changed.

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.

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