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Government publishes cookie law plans and says browser settings cannot give consent

Browser settings alone cannot be used by web users to give consent to their behaviour being tracked under a new EU law, the UK Government has said. The Government said that it will implement the EU law by a 25 May deadline.18 Apr 2011

The Government has confirmed it will go ahead with a previously-announced plan to simply copy the wording of the EU law without change into UK law. It will lay its proposed law before Parliament by the end of April, it said.

The European Commission created a package of telecoms law reforms in 2009 that included changes to the way the Privacy and Electronic Communications Directive treated cookies. Cookies are small text files placed by sites in users' browsers to track their activity.

The new law said that sites must have a user's consent before placing a cookie in their browser. Industry groups have argued that a user's browser settings can indicate consent to the use of cookies, but privacy regulators have said that this does not represent full consent.

The Government has now said in its response to a consultation on the issue that publishers will need to gain consent more explicitly than is provided for in current browser settings.

"Many respondents were clear that browser settings (though not in their current form) might be the most cost effective and efficient means of harvesting the consent of the user," said the Government's response to the consultation (88-page / 388KB PDF). "However, it is the opinion of the Government that given the substantive changes to the wording of the Directive, the current use of browser setting as a form of consent is not consistent with the revised wording."

The Directive allows for the use of cookies that are 'strictly necessary' for the operation of a website and its delivery of services a user has explicitly requested. The Government said that the use of cookies in online shopping carts qualifies as a permitted use of cookies.

"Although Government has declined to attempt to list what cookies are 'strictly necessary', we consider that it will, for instance, cover the use of cookies that underpin the use of shopping baskets on websites," it said.

As previously revealed by OUT-LAW.COM, the Government is working with browser manufacturers on enhanced settings which might be considered able to represent a user's consent in line with the EU law.

"Users will be provided with more information as to the use of cookies and will be presented with easily understandable choices with regard to the import of cookies on to their machine," said the Government's consultation response. "In terms of taking this work forward, Government has formed a working group made up of representatives from the browser manufacturers to look at the issue in more detail."

The Government has conceded, though, that this will not provide a technical solution before the new law has come into force.

The online advertising industry has been working on self-regulatory measures aimed at complying with the new EU law. The Government has said that in its view companies that adopt these measures will be complying with the new law.

"This industry lead approach will marry the provision of more information on the use of cookies accessed through an easily recognisable internet icon, a privacy policy notice, a single consumer control page, with a self-regulatory compliance and enforcement mechanism," it said. "Through clicking on the icon the consumer will be informed about: each specific internet advert; the advertiser; the server; who the advert was customised by; and an option to refuse those and other cookies (including an option to refuse all cookies from that server). Consumers will also be provided with a link to further information on privacy and behavioural advertising."

"[The Government] is satisfied that this meets the requirements of [the new law]," it said in its consultation response. "The European commission has also endorsed this work. The Government believes that this work fully addresses one of the uses of cookies of most concern to users and is, therefore, a major component in the Government’s plans for meeting the requirement of the revised provisions."

Technology law news is also available from Bootlaw, a free resource for technology start-ups, with regular events hosted by Pinsent Masons.

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