On 26th May 2011, new laws came into force in the UK that affect most web sites. If cookies are used in a site, the Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2011 (UK Regulations) provide that certain information must be given to that site’s visitors and the user must give his or her consent to the placing of the cookies.
The UK Regulations implemented into UK law the provisions of the amended E-Privacy Directive of 2009. The Directive required that the new laws be implemented into the laws of all EU Member States by 25th May 2011The UK is only one of three member states to meet this deadline.
Below you will find details on the UK Regulations and some additional information on the E-Privacy Directive itself. Because each Member State has some discretion in how it implements a Directive, the cookie laws in other European countries may differ from those of the UK.
The actual wording of the Regulations
The relevant rules are found in amended regulation 6, which reads as follows:
6. – (1) Subject to paragraph (4), a person shall not store or gain information, or to gain access to information stored, in the terminal equipment of a subscriber or user unless the requirements of paragraph (2) are met.
(2) The requirements are that the subscriber or user of that terminal equipment –
(a) is provided with clear and comprehensive information about the purposes of the storage of, or access to, that information; and
(b) has given his or her consent.
(3) Where an electronic communications network is used by the same person to store or access information in the terminal equipment of a subscriber or user on more than one occasion, it is sufficient for the purposes of this regulation that the requirements of paragraph (2) are met in respect of the initial use.
(3A) For the purposes of paragraph (2), consent may be signified by a subscriber who amends or sets controls on the internet browser which the subscriber uses or by using another application or programme to signify consent.
(4) Paragraph (1) shall not apply to the technical storage of, or access to, information –
(a) for the sole purpose of carrying out the transmission of a communication over an electronic communications network; or
(b) where such storage or access is strictly necessary for the provision of an information society service requested by the subscriber or user.
What does this mean?
The term “consent” is not defined in the UK Regulations or the Data Protection Act 1998. It is, however, defined in the Data Protection Directive of 1995, as “any freely given specific and informed indication of his wishes”. This Directive was implemented in the UK by the Data Protection Act.
The consent requirement has been the subject of much discussion since the publication of the amended E-Privacy Directive. Various authorities, including the Article 29 Working Party (a coalition of data protection regulators from across the EU), the UK Government and the Information Commissioner’s Office (ICO) have voiced conflicting opinions on how the consent requirement will operate in practice. The authorities have differing views on whether consent should be obtained prior to the placing of cookies. It is difficult to see how anything other than prior consent will comply with the wording of the UK Regulations.
“Consent must be obtained before the cookie is placed and/or information stored in the user’s terminal equipment is collected, which is usually referred to as prior consent,” said the Working Party’s Opinion (24-page / 202KB PDF). “Informed consent can only be obtained if prior information about the sending and purposes of the cookie has been given to the user.”
The Working Party did not go as far as to say that every website needs to ask every visitor to accept every cookie, though. Many cookies are used by advertising networks across multiple sites. For these cookies, consent can be given once to a network and cover all the sites that network serves, according to the Working Party.
Shortly before the publication of the Regulations the Information Commissioner published guidance that offers advice on when and how the consent may be given.
Both the ICO and the UK Government have not ruled out the use of browser settings to achieve compliance in the future. The Government has set up a working group comprising Mozilla, Apple, Microsoft, Google, Yahoo, the Internet Advertising Bureau and Adobe to work on a technical solution. In the meantime the ICO advises businesses to obtain consent some other way. The guidance states:
The guidance continues:
“You need to provide information about cookies and obtain consent before a cookie is set for the first time. Provided you get consent at that point you do not need to do so again for the same person each time you use the same cookie (for the same purpose) in future”.
The ICO will consider issuing more detailed advice if they deem it appropriate. They have stated in their guidance that this may include further examples of how to gain consent for particular types of cookies as methods develop.
Penalty for non-compliance
From May 2012 the ICO will follow the approach to enforcement set out in the Commissioner’s Data Protection Regulatory Action Policy. In deciding whether enforcement action is appropriate the ICO will be concerned with the impact of the breach of the new cookie law on the privacy and other rights of website users, not just with if there has been a technical breach of the UK Regulations.
The UK Regulations carry a maximum fine of £500,000 for serious breaches. It is anticipated that this power will only be used in limited circumstances. Before this the fine was £5,000 and companies may have been willing to run the risk but with these increased powers the result of enforcement action is potentially more severe.
The Data Protection Act Can Also Apply
The UK’s Data Protection Act of 1998 derives from the EU Data Protection Directive and does not contain specific provisions relating to cookies. However, it does require that where personal information is collected then data subjects (which will include internet users) should be told of this collection or information about it should be made available to them.
Even where it is possible to anonymise information, the information may still be classed as personal data under the Act if it can be traced back or put together with other information to identify the individual.
Therefore the requirements of the Act are that the owner of a web site using cookies (the data controller) must make its identity clear, the purposes for it having the information and anything else necessary in the circumstances to make the processing fair. This information must also be provided when personal data are collected from third parties.
There is a requirement under the amended E-Privacy Directive and the UK Regulations to
- tell users about cookies and what you are going to use their information for; and
- obtain their consent to the placing of the cookies..
Obtaining users’ consent to the placing of a cookie is technically more difficult. As yet the browser settings option for obtaining consent is not sufficient in the UK as browsers are currently not sophisticated enough. Until such time as this becomes a possibility (if at all) the ICO and the UK Government advise that consent must be obtained in some other way. The ICO guidance which is a starting point for compliance for organisations, suggests a number of different ways to obtain consent:
- pop ups or similar techniques asking for consent can be used. Pop ups are discouraged by Web Content Accessibility Guidelines. They may also spoil the experience of using a website Users can also block pop ups by default, making this impractical;
- preferences that users choose when visiting a site can also be used as a means of obtaining consent. Consent could be gained as part of the process by which the user confirms what they want to do or how they want the site to work, provided sufficient information about the use of the cookies is provided. This would apply to any feature where a user is told that a site can remember certain settings they have chosen;
- website features, such as videos, that remember how users personalise their interaction can also determine user consent. In this case, where the user is taking some action to tell the webpage what they want to happen – opening a link, clicking a button or agreeing to the functionality being ‘switched on’ – then their consent to set a cookie can be asked at this point;
- where a site allows a third party to set cookies the process of getting consent is more difficult. Initiatives that seek to ensure that users are given more and better information about the use of information, for example the use of the “i” symbol, referred to below, should be used. Anyone whose site uses or allows third party cookies must ensure that the right information is delivered to users so they can make informed choices.
In the absence of definitive methods a hybrid of the above methods is likely to be the way forward for the time being at least, namely a combination of information and consent.
The ICO’s own website places cookies and since 26th May a consent ‘opt-in’ box has been placed at the top of their homepage, requiring users to check a box to consent to the placing of cookies.
Website owners/businesses should consider what would work for them by looking at their business and how they use their website.