Legal/Finance
with Peter Billyard, of Charles Lucas & Marshall
According to a leading legal information provider, in 2010 there were 806 new laws published by the EU which had an impact in the UK. Peter Billyard, a corporate services lawyer with Charles Lucas & Marshall predicts we can expect a further increase this year.Several months ago one such EU-derived law came into force which applied to how cookies and other similar technologies are used to store information on computers and mobile devices.
For the uninitiated, cookies are small files used by websites that send information to the browser used by the website visitor which in turn return information to that website. They are typically used to store passwords, to show more relevant content for site users and for tracking browsing habits. Cookies are of benefit to users but are also highly valued by marketers.
The main change introduced by the EC Directive is that a website which uses cookies is now required to:
n Provide clear and comprehensive information about the purposes of the storage of or access to the data collected; and
n Obtain a user’s consent if they want to store a cookie on a user’s device.
This change marks a shift in the law to an ‘opt-in’ system.
The law does include an exception to the need to gain a user’s consent. This is when a cookie is ‘strictly necessary’ for a service explicitly requested by a user. An example of this is when a cookie is used to ensure that when a user clicks the ‘proceed to checkout’ button the website has a record of what item the user selected to purchase.
However, such exceptions will be very limited in number and will be, in legal-speak, ‘interpreted narrowly’. In other words it’s not an easy option to avoid complying with the new law.
Currently, many website owners (and users) are already familiar with requesting consent from users to their site’s terms and conditions of business. Indeed some sites have previously referred to the use of cookies in the terms and conditions. It will no longer be possible to do this. To comply with the new rules you will have to refer specifically to the use of cookies and then gain a positive indication that users understand what they are agreeing to and give them a way to show their acceptance.
The Information Commissioner’s Office, which is responsible for policing the new law, has given website owners until May 2012 to comply. In the meantime it expects website owners to be aware of the change in the law and to be able to show what steps it is taking to conform with the new law.
Website owners should therefore ideally check what cookies are used by their site, how they are used and decide the best way in which they plan to obtain consent from users.
For further information contact Peter Billyard on (01635) 521212 or peter.billyard@clmlaw.co.uk
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