Since the 2009 amendments to Article 5(3) of the ePrivacy Directive (2002/58/EC) regarding cookies and consent, there has been considerable debate over what web sites and ad networks must do in order to deploy cookies lawfully, and over what constitutes informed consent from users (e.g., opt-in versus opt-out). For a flavour, see the Article 29 Working Party Opinion 2/2010 on online behavioural advertising, strong opposition to this opinion from industry (pointing out that an opt-in consent regime for cookies would seriously disrupt online services), and even comments from the rapporteur for the Directive, Alexander Alvaro, trying to clear up what is required.
Member States have until May of this year to implement these changes to the Directive in national law. Following early indications that the UK would reject an opt-in system for cookies and simply copy the wording of the Directive leaving it to the UK Information Commissioner (“ICO”) to adjust to changes in usage and technology, the ICO today issued a warning to businesses and other organisations that run websites in the UK that they are going to have to “wake-up” to the fact that changes are being made soon.
Although it is still not clear exactly what they are going to have to “wake up” to, industry may take some solace from the ICO’s statement that “changes must not have a detrimental impact on consumers nor cause an unnecessary burden on UK businesses,” and that “one option being considered is to allow consent to the use of cookies to be given via browser settings.” Ed Vaizey, Minister for Culture, Communications and the Creative Industries, also said that the Government does not expect the ICO to take enforcement action in the short term against businesses and organisations as they work out how to address their use of cookies.
It therefore remains to be seen how the law will be implemented and enforced in the UK (as well as in the other Member States). The Internet Advertising Bureau has issued a reaction to the ICO statement, expressing concern about confusion for consumers and businesses following the ICO’s warning, and emphasising that industry is working hard with the UK Government, the ICO and other stakeholders on potential solutions to help meet the informed consent provisions of the law.