You May Have An Illegal Website – Cookie Law

cookie lawA debate in the office over the past few weeks has brought up the deadline for businesses to ensure that their websites comply with the new cookie law that comes into effect next month.

Our friends at Withy King Solicitors in Swindon, recently wrote this article that we are publishing as a guest blog post for you today.

Withy King’s article:

An informal survey of some of the top UK brands’ websites and those of some of our clients, has revealed a low level of compliance with the new cookie law due to come into effect next month. If your business uses cookies on its websites and you have not taken steps to comply with the regime – read on.

Website operators are required to comply by the end of April. The Information Commissioner’s Office (ICO) has indicated that it will be contacting businesses that do not comply. Ultimately the ICO has sanctions available ranging from issuing Information Notices through to fining organisations up to £500,000.

Organisations need to analyse whether they use cookies on their websites, what they use them for and how intrusive they are. For example, some cookies create detailed profiles of a user’s browsing activity, which is quite privacy intrusive. The organisation should then consider what consent it needs to get from the user. To comply, website operators have to explain on their website what cookies they use, what they do and obtain consent to use these cookies.

A guide issued by the International Chamber of Commerce divides cookies into four types and talks about the type of consent that should be obtained from the user. Although it is not legal advice, it is a stepping stone to allow IT and marketing departments to make an initial assessment of their cookies.

Cookies which are “strictly necessary”– such as cookies which are essential to enable a user to move around a website and use its features – do not require consent.

Jessica Bent of the Technology and Media team comments: “The big issue is cookies for web analytics. These obtain anonymous statistical data regarding page views and time spent on a page. Many businesses consider such cookies are strictly necessary, but the ICO takes a different view and has indicated that websites need to tell people about analytical cookies and get their consent”. She goes on to say that: “The ICO has said that it would not prioritise policing use of such cookies in any enforcement action, and that it will be issuing further guidance shortly. So until then the jury is out on web analytics.”

For further information on the new cookie law or any other IT or intellectual property issue, please do not hesitate to contact Jessica Bent or any other member of the Technology & Media team from Withy King at their head office in Bath – Tel: 01225 425731

We also found some guidance notes from the ICO (available in PDF format here) that say:

The Regulations do not distinguish between cookies used for analytical activities and those used for other purposes. We do not consider analytical cookies fall within the ‘strictly necessary’ exception criteria. This means in theory websites need to tell people about analytical cookies and gain their consent.

In practice we would expect you to provide clear information to users about analytical cookies and take what steps you can to seek their agreement. This is likely to involve making the argument to show users why these cookies are useful. Although the Information Commissioner cannot completely exclude the possibility of formal action in any area, it is highly unlikely that priority for any formal action would be given to focusing on uses of cookies where there is a low level of intrusiveness and risk of harm to individuals. Provided clear information is given about their activities we are highly unlikely to prioritise first party cookies used only for analytical purposes in any consideration of regulatory action.

As the jury is still out on the full and proper implementation of this – ranging from a disclaimed on the top of your website, through to a pop up – here at HodgesNet we are poised and ready to respond and help you implement the right solution for your website. If you would like more information on how we can help add the right functionality to your site, call 01793 608777 or use the contact form above to get in touch.

 

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