ICO surprises with last-minute cookies changes

Data watchdog says "implied consent" is good enough

Nicole Kobie
28 May 2012

The Information Commissioner has surprised web admins by rolling out changes to how it views the cookies law the day before an enforcement deadline.

The law - the result of an EU directive regarding online privacy - requires websites to get consent before dropping cookies and other tracking technologies onto users' computers. It came into law last year, but the ICO gave websites a year's grace before enforcement started.

However, a day before enforcement was due to start, the ICO revealed it would consider "implied consent" to be good enough - meaning sites can simply tell users that by continuing to use the site, cookies will be used.

"Implied consent is a valid form of consent and can be used in the context of compliance with the revised rules on cookies," said Dave Evans, head of business policy, in a post on the ICO site. "If you are relying on implied consent you need to be satisfied that your users understand that their actions will result in cookies being set. Without this understanding you do not have their informed consent."

The data watchdog has issued limited guidance on how to meet the law, saying it doesn't want to tell companies what to do. "We’ve stressed that there’s no ‘one size fits all approach’," Evans said. "We think that organisations themselves are best placed to develop their own solutions. They will know how and why their customers use their websites better than we do."

Implied consent appears to be a popular tactic for many websites. As well as PC Pro, sites such as the BBC, The Sun, and The Guardian are also running banners advising users that use of the site means cookies will be dropped.

Bad timing

While the move will probably be welcomed by many websites, the timing led to some complaints.

"This is a striking shift," Stephen Groom, head of marketing and privacy law at the law firm Osborne Clarke, told The Guardian. "Previously the ICO said that implied consent would be unlikely to work. Now it says that implied consent is a valid form of consent."

"Cookies law changed at 11th hour," said one Twitter user. "All that work last week was really worth it. Thanks ICO."

"Let's all get a box of cookies sent to the ICO to thank them for their capriciousness," added another Twitter user.

The ICO has made it clear it has no plans to unleash a "torrent of enforcement action" against sites, especially those working to meet the law, and that it won't be doling out fines.

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