Data Protection Consulting

Further guidance published by the ICO in 2011 on the new cookie law gives some direction in the following areas:

What is meant by consent to the use of cookies?  It must involve a form of communication where an individual knowingly indicates their acceptance.

Which cookies are likely to be exempt from the consent requirement?  The ICO said that cookies used for online shopping baskets and ones that help keep user data safe are likely to be exempt from compliance with the new rules.

Which cookies will be subject to the consent rules? Cookies used for most other purposes including analytical, first and third party advertising and tracking.

Examples of how consent might be obtained are given in the guidance which is available on the ICO website.  They include:

• Pop ups and similar techniques such as message bars or header bars.

• A specific term in terms and conditions of use of the website.  Changing the terms without notifying users would not constitute consent so a pop up or message bar would be needed initially to gain consent to the changes to the terms and conditions around the use of cookies but this would not need to be repeated each time the user visits the site.

• Settings led consent where a user makes a choice about how a website works for them, for example features where the user is advised that the website can remember the setting they have chosen, the "remember me?" option or "Remember my preferences"