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Update: Implementation of new browser cookies
requirements
This update provides a brief outline of recent changes to the
laws governing the use of website cookies and why it is important
to start complying with these rules now. For an extract from our
previous update on cookies, which provides the background to this
update, please
click here.
What are cookies?
A cookie is a small file, downloaded on to a device when a user
accesses certain websites. Cookies collect information about
website users, such as their names, addresses, passwords and other
user preferences. They are useful for website operators because
they allow a website to recognise a user's device, such as
remembering what a user has put in their shopping basket as they
browse the website and what browsing preferences a particular user
has.
The current law
A year ago the laws governing the use of cookies by a website
operator, as a method of gathering information about the website
user, were changed across the European Community. Under the new
legislation website operators are required to:
1) clearly and comprehensively inform users of the purpose
behind the use of cookies on their website; and
2) obtain the user's permission before storing any cookies
on the user's device (such as a computer or mobile device).
The major change brought about by the new law is that website
operators are now required to obtain the user's consent before
storing cookies on the user's device. Previously, website
operators were only required to inform users of how cookies were
used and how the user could disable cookies if they objected to
their use.
Why is this relevant now?
The new rules are relevant now because they are being
implemented in the UK from 26 May 2012 onwards.
Although these rules officially came into force on 26 May 2011,
the Information Commissioner's Office (ICO) (which has
responsibility for enforcing the law on cookies in the UK), agreed
to give website operators a 12 month lead-in to comply with the new
rules. The ICO is now able to take formal action for any website
operators not complying with the rules.
The ICO's approach
The ICO is giving mixed messages on how strictly it intends to
enforce the new rules. For example, in its latest guidance note the
ICO has softened its approach to consent by stating that it will
permit implied consent from users rather than requiring the user to
make an explicit decision on whether to opt in or out of cookies.
However, as the lead-in period has come to an end the ICO will
expect website operators to be compliant, or at least to be moving
towards compliance, with the new rules.
Whilst the ICO is empowered to issue fines up to a maximum of
Ł500,000, it has stated that its preferred approach is to
issue binding undertakings with which website operators must
comply. Although these penalties will be reserved for the most
serious breaches, website operators should now ensure that their
websites incorporate an appropriate method of obtaining the
user's permission in order to comply with the law. There has
been a fair amount of press coverage in the UK recently regarding
businesses either complying or overtly stating that they are not
going to comply with the new rules, for reasons which tend to focus
on the impracticality of compliance and the disruption to the
browsing experience which compliance with the legislation would
cause. As fair or reasonable as these reasons may be, we do not
recommend that any business fails to comply with its legal
obligations, at least to the minimum extent required.
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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