ICO: browser settings not enough for cookies law

Information Commissioner has yet to detail potential enforcement action

Nicole Kobie
9 May 2011

Web firms can't rely on browser settings to help them comply with new anti-cookie laws, the Information Commissioner's Office has said.

The ICO has finally released its guidance on how websites can comply with a new EU directive that requires consent for non-essential cookies, ahead of a looming 26 May deadline.

Despite the Government suggesting the problem might be solved using browser settings - such as do-not-follow lists in Firefox and IE9 - the ICO has said such systems are simply not strong enough.

"At present, most browser settings are not sophisticated enough to allow you to assume that the user has given their consent to allow your website to set a cookie," the guidance says, noting users may access sites via apps instead of browsers, and may not have the most recent versions with the latest cookie controls built in.

This advice is very much a work in progress and doesn’t yet provide all of the answers

"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."

Pop-up alerts

Instead, the ICO suggested a few other methods for websites to consider, including pop-ups, although it admitted those "might well spoil the experience of using a website if you use several cookies".

The ICO also suggested using the terms and conditions of the site for those that offer accounts or require logins, although it stressed websites must make sure users fully understand the changes they are agreeing to, and not just bury the changes where they won't be noticed.

Websites could also consider alerting users to cookies in settings for specific features on the site, such as video or language preferences, or highlighting at the top or bottom of the site when third-party cookies, such as for analytics or advertising, are being used.

Consent is not needed for those cookies that are "strictly necessary" for a service requested by a user - such as for logins or online checkouts.

"The exception would not apply, for example, just because you have decided that your website is more attractive if you remember users’ preferences or if you decide to use a cookie to collect statistical information about the use of your website," the ICO noted.

Information Commissioner Christopher Graham said his organisation "welcomed" feedback on the guidance. "This advice is very much a work in progress and doesn’t yet provide all of the answers."

The ICO said it may offer more "detailed advice" in the future, but said "we do not intend to issue prescriptive lists on how to comply".

No enforcement yet

Web companies need not panic over the vague guidance and tight deadline, as the ICO has reiterated that it has no immediate plans to take action against sites that don't comply.

The ICO said it will issue "separate guidance" on how it plans to enforce the new regulations, but stressed it would only investigate websites after receiving a complaint, and then will merely require sites to show they have a "realistic plan to achieve compliance".

However, Graham said the ICO will "undoubtedly" receive complaints about websites as the law goes live, and advised companies to start making changes now.

The ICO will also "shortly" release advice for consumers regarding the new cookie rules.

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