CookieLaw Blog May 26, 2012

New ICO Guidance Increases Support for Implied Consent

The ICO released updated guidelines to websites looking to comply with the cookie law on Friday 25 May – the last working day of their one year grace period for enforcement.

This latest document sets out much stronger support for the Implied Consent approach to compliance than previously.

The following is a quote from the previous guidance from November 2011:

“At present evidence demonstrates that general awareness of the functions and uses of cookies is simply not high enough for websites to look to rely entirely in the first instance on implied consent.”

This statement is entirely absent from the new guidance.  Instead it has been replaced by several paragraphs of explanation about how the ICO defines implied consent, and what is needed for a website to be able to rely on it as a valid form of consent.

The two key elements of implied consent, according to this guidance are:

  • Information.  Visitors need to be given a clear notice that the website uses cookies, and an explanation of what they are used for.
  • Choice. Visitors to a site should have the ability to exercise control over the setting of cookies – even if the consequences might be loss of functionality for that visitor.

The last few days has seen a slew of big websites – especially big media websites – go public with their compliance solution.  Most of these sites more or less tick the box on the information requirements, however some have clearly chosen to not give their visitors choice.

Whether or not this is deemed to be compliant with the regulations, the sites are effectively sending a message that says, “If you don’t like what we are doing, go somewhere else.

As consumers become progressively more aware of their new rights – it will be interesting to see if they do reject such sites in significant numbers.

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