Cookie Law

Please note: Cookie laws have changed with effect from 26th May 2011.

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.

UK Regulations

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.

Return to top

What does this mean?

The UK Regulations mean that a website operator must not store information or gain access to information stored in the computer (or other web-enabled device) of a user unless the user "is provided with clear and comprehensive information about the purposes of the storage of, or access to, that information" and "has given his or her consent".  The consent requirement in the UK Regulations replaces the previous position which provided that visitors should be given the option to refuse cookies.

The only cookies that do not need users' consent are those that are necessary to fulfill the user's request. That will cover, for example, the use of cookies to remember the contents of a user's shopping cart as the user moves through several pages on a website. Other cookies, including those used to count visitors to a site and those used to serve advertising, will require consent.

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."

"Average data subjects are not aware of the tracking of their online behaviour, the purposes of the tracking, etc. They are not always aware of how to use browser settings to reject cookies, even if this is included in privacy policies," said the Working Party. "It is a fallacy to deem that on a general basis data subject inaction (he/she has not set the browser to refuse cookies) provides a clear and unambiguous indication of his/her wishes."

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.

Although the guidance suggests a number of methods to obtain consent it stops short of providing definitive guidance on how to achieve compliance, leaving it to businesses and organisations to review their use of cookies and consider how they might be able to obtain the necessary consent.

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:

"At present, most browser settings are not sophisticated enough to allow you to assume that the user has given consent to allow your website to set a cookie. Also, not everyone who visits your site will do so using a browser.  They may, for example, have used an application on their mobile device.  So, for now we are advising organisations which use cookies or other means of storing information on a user's equipment that they have to gain consent some other way".

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

Fortunately for operators of web sites, the ICO has indicated that during the next twelve months it will not be taking any enforcement action against companies that can show that they are considering their use of cookies and working on solutions to the problem of obtaining consent.  The key message from the ICO is that inaction is not acceptable. If the ICO is of the view that organisations are not making adequate preparations to be compliant by May 2012 a warning may be issued as to the use of the Information Commissioner's future powers.

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.

Return to top

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.

For further information on data protection refer to our sister site, http://www.out-law.com/.

Return to top

Summary

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..

The Data Protection Act also requires users to be provided with certain information. A simple way to provide internet users with information is to provide them with a privacy policy, a data protection notice, or both. The privacy policy or notice if used properly can meet the information provision requirements of both the Directive and the Act. For further information on implementing a privacy policy or data protection notice online see the OUT-LAW.COM guide on Data Protection.

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;
• consent can be obtained by using terms of use or terms and conditions.  In using this option consent is given by the user when they first register or sign-up.  If this method is used it is essential that a user is made aware of any changes made to the terms to include consent for cookies and specifically that the changes relate to the use of cookies.  It would then be necessary to obtain a positive indication that the user understands and agrees to the changes;
• 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;
• for use of analytic cookies to gather information about how people access and use a site it may be possible to add a footer or header to a webpage containing text.  This text is highlighted or turned into a scrolling piece of text when a site wants to set a cookie on a user's device.  In turn this could direct the user to read additional information, possibly contained in a privacy policy, and make an appropriate choice;
• 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.

As an alternative businesses may wish to consider using a non-cookie site. A simple brochure-style site with no way to login and no e-commerce functionality may not use cookies, meaning that the new law will not affect the site. This option may not be practical for many businesses as it could place them at a competitive disadvantage to competitors and sites outside the EU. A non-cookie site may lose revenues from advertising meaning that it is not cost effective to run such a site. Organisations could charge for these sites but is it unlikely that users will pay to see such a site.

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.

Return to top

Useful Links

Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2011-06-20

Guidance on changes to the rules on cookies and similar technologies for storing information

Information Commissioner's Guidance

Department for Culture, Media and Sport open letter on the UK implementation of Article 5(3) of the e-Privacy Directive on cookies

Directive of 2009 amending Directive of 2002

Data Protection Act 1998

Disclaimer: We hope you find this content useful. It was prepared by lawyers at Pinsent Masons. Please remember, though, that it’s intended as general information only. It’s not legal advice. If that’s what you’re seeking, please contact us.