Website Regulation – Cookies

The use of cookies by websites has been a contentious issue since the beginning of the internet age.  A cookie is a small file which is transmitted to and stored on a computer when a website is visited and contains information in relation to the user which will be retrieved by the website when it visited again at a later date using the same computer.  This information allows the website to obtain details of the user’s browsing habits on the site and usually occurs without the user’s knowledge or consent.  The information can then be used to display particular products or offers to the user, based on the pages already viewed. 

A further level of website regulation is to come into force under 6(1) and (2) of the Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2011, which came into force on 26 May 2011 and amend the Privacy and Electronic Communications Regulations 2003 (the “revised Regulations”).  The revised Regulations only permit the use of cookies on a website if the user of the site has been presented with clear and comprehensive information regarding their use and has consented to that use.  Consent must involve some form of communication where the individual knowingly indicates their acceptance, which may involve clicking on an icon, sending an email or subscribing to a service.

The Information Commissioner’s Office (“ICO”) initially published guidance in May 2011, allowing a 12 month period for compliance with the cookie-related requirements.

The ICO’s updated guidance recognises that user awareness with regard to cookies is very low and makes it clear that it is not enough to merely provide the information through the privacy policy, particularly if the link to such policy is located out of sight at the bottom of a webpage.  Any reliance on “implied” consent will only be valid if the user has a complete understanding of the fact that the cookies will be set and their purpose.  The ICO believe that user awareness is not currently high enough for websites to rely on implied consents to the use of cookies. 
 
Please note that this information is provided for general knowledge only and therefore specific advice should be sought for individual cases.

For further information, please contact Paul Gilks at