Old man on the street
Old man on the street
Writing a letter
Boy writing a letter
Girls on their mobiles
Girls on their mobiles
Photographing an event
Photographing an event
Girl with laptop
Girl with laptop
Man on phone
Man on phone
Clothing on a rail
Clothing on a rail
Shopping at a market
Shopping at a market
Girl on phone
Girl on phone
Market Seller
Market Seller
People at a station
People at a station
Busy street
Busy street
Earth from space
Earth from space
Man on Laptop
Man on laptop
Man on mobile
Man on mobile
Man on laptop
Man on laptop
Construction workers
Construction workers
Girls on mobiles
Girls on mobiles
Kids on mobiles
Kids on mobiles
Girls on mobiles
Girls on mobiles
Man in a hat
Man in a hat
British postbox
British postbox
Cartwheel on a beach
Cartwheel on a beach
Woman on a phone
Woman on a phone
Monopoly board
Monopoly board
Woman
Woman
People in office
People in office
Video recording
Video recording
Men talking
Men talking
Woman
Woman
On a tablet
On a tablet
People
People
Woman on bench
Woman on bench
Man waiting for train
Man waiting for train
Something
Something
Woman
Woman
Busy street
Busy street
JMS Connect
JMS Connect
JMS Innov8
JMS Innov8
JMS Inspire
JMS Inspire
JMS Shout
JMS Shout
JMS SEO Thermostat
JMS SEO Thermostat

The UK law

The Privacy and Electronic Communications (Amendment) Regulations 2011 amended the original 2003 Regulations.

If a website uses cookies, the UK Regulations provide that certain information must be given to that website's visitors and the visitor must give his or her consent to the placing of the cookies, unless a limited exception applies.

The relevant rules are found in amended Regulation 6, which reads as follows:

6. - (1) Subject to paragraph (4), a person shall not store or gain access to information stored, in the terminal equipment of a subscriber or user unless the requirements of paragraph (2) are met.

(2) The requirements are that the subscriber or user of that terminal equipment -
(a) is provided with clear and comprehensive information about the purposes of the storage of, or access to, that information; and
(b) has given his or her consent.

(3) Where an electronic communications network is used by the same person to store or access information in the terminal equipment of a subscriber or user on more than one occasion, it is sufficient for the purposes of this regulation that the requirements of paragraph (2) are met in respect of the initial use.

(3A) For the purposes of paragraph (2), consent may be signified by a subscriber who amends or sets controls on the internet browser which the subscriber uses or by using another application or programme to signify consent.

(4) Paragraph (1) shall not apply to the technical storage of, or access to, information -
(a) for the sole purpose of carrying out the transmission of a communication over an electronic communications network; or
(b) where such storage or access is strictly necessary for the provision of an information society service requested by the subscriber or user.

What does this mean?

The PECD mean that a website operator must not store information or gain access to information stored in the computer (or other web-enabled device) of a user unless the user "is provided with clear and comprehensive information about the purposes of the storage of, or access to, that information" and "has given his or her consent". The consent requirement in the PECD replaces the previous position that provided that visitors should be given the ability to refuse cookies.

The only cookies that do not need users' consent are those that are strictly necessary to fulfill the user's request for services. That will cover, for example, the use of cookies to remember the contents of a user's shopping cart as the user moves through several pages on a website. Other cookies, including those used to count visitors to a website and those used to serve advertising, will require consent.

The term "consent" is not defined in the UK Regulations or the Data Protection Act 1998. It is, however, defined in the Data Protection Directive of 1995, as "any freely given specific and informed indication of his wishes". This Directive was implemented in the UK by the Data Protection Act 1998.

The consent requirement has been the subject of much discussion since the publication of the EU Directive amending the cookies law. Various authorities, including the Article 29 Working Party (a coalition of data protection regulators from across the EU), the UK Government and the Information Commissioner's Office have voiced conflicting opinions on how the consent requirement will operate in practice. The authorities have differing views on whether consent should be obtained prior to the placing of cookies. It is difficult to see how anything other than prior consent will comply with the wording of the UK Regulations.

The Article 29 Working Party warned that consent cannot be implied from browser settings.
"Consent must be obtained before the cookie is placed and/or information stored in the user's terminal equipment is collected, which is usually referred to as prior consent," said the Working Party's spokesman. "Informed consent can only be obtained if prior information about the sending and purposes of the cookie has been given to the user."
"Average data subjects are not aware of the tracking of their online behaviour, the purposes of the tracking, etc. They are not always aware of how to use browser settings to reject cookies, even if this is included in privacy policies," said the Working Party. "It is a fallacy to deem that on a general basis data subject inaction (he/she has not set the browser to refuse cookies) provides a clear and unambiguous indication of his/her wishes."

The Working Party did not go as far as to say that every website needs to ask every visitor to accept every cookie, though. Many cookies are used by advertising networks across multiple websites. For these cookies, consent can be given once to a network and cover all the websites that network serves, according to the Working Party.

Shortly before the publication of the PECD the Information Commissioner published guidance that offers advice on when and how the consent may be given.

Although the guidance suggests a number of methods to obtain consent it stops short of proving definitive guidance on how to achieve compliance, leaving it to businesses and organisations to review their use of cookies and consider how they might be able to obtain the necessary consent.

The guidance continues:
"You need to provide information about cookies and obtain consent before a cookie is set for the first time. Provided you get consent at that point you do not need to do so again for the same person each time you use the same cookie (for the same purpose) in future".

The ICO will consider issuing more detailed advice if they deem it appropriate. They have stated in their guidance that this may include further examples of how to gain consent for particular types of cookies as methods develop.

Fortunately for operators of web sites, the ICO has indicated that during the next twelve months it will not be taking any enforcement action against companies that can show that they are considering their use of cookies and working on solutions to the problem of obtaining consent. The key message from the ICO is that inaction is not acceptable.

How to comply with the UK's current law on cookies

Under the PECD you still need to provide information on how you use cookies on your website. Therefore we still recommend that if your website uses cookies, you should:

  • Include a link to your privacy policy on all pages;
  • Explain in that policy how and why you use cookies; and
  • Include a link in your policy to www.aboutcookies.org so that your visitors can access instructions on deleting and controlling cookies.

Your privacy policy should explain, for example, that you use cookies to count visitors to your website. If you facilitate the delivery and reading of third party cookies on your website, that should also be addressed. The third parties should be identified. If you use Flash cookies, address that too.

The ICO guidance states that it is a starting point for businesses to achieve compliance, In the absence of definitive methods of compliance it is difficult say for certain what steps need to be taken to comply with the PECD. We suggest that businesses should at least:

  • Audit how their sites operate and receive data from online partners and providers and what they receive to obtain a clear understanding of where cookies are used and for what purpose;
  • Assess how intrusive their use of cookies is; and
  • Whenever a new site is developed or an existing one upgraded, or a website-related commercial relationship started, ensure that there are clear details about the operation of cookies and tracking to be used.

The ICO guidance suggests a number of different methods that can be used for obtaining user consent but encourages businesses to find the solution that works best for them.

  • Pop ups or similar techniques asking for consent can be used. Pop ups are discouraged by Web Content Accessibility Guidelines. They may also spoil the experience of using a website. Users can also block pop ups by default, making this impractical;
  • Consent can be obtained by using terms of use or terms and conditions. In using this option consent is given by the user when they first register or sign-up. If this method is used it is essential that a user is made aware of any changes made to the terms to include consent for cookies and specifically that the changes relate to the use of cookies. It would then be necessary to obtain a positive indication that the user understands and agrees to the changes;
  • Preferences that users choose when visiting a website can also be used as a means of obtaining consent. Consent could be gained as part of the process by which the user confirms what they want to do or how they want the website to work, provided sufficient information about the use of the cookies is provided. This would apply to any feature where a user is told that a website can remember certain settings they have chosen;
  • Website features, such as videos, that remember how users personalise their interaction can also determine user consent. In this case, where the user is taking some action to tell the webpage what they want to happen – opening a link, clicking a button or agreeing to the functionality being 'switched on' – then their consent to set a cookie can be asked at this point;
  • For use of analytic cookies to gather information about how people access and use a website it may be possible to add a footer or header to a webpage containing text. This text is highlighted or turned into a scrolling piece of text when a site wants to set a cookie on a user's device. In turn this could direct the user to read additional information, possibly contained in a privacy policy, and make an appropriate choice;
  • Where a website allows a third party to set cookies the process of getting consent is more difficult. Initiatives that seek to ensure that users are given more and better information about the use of information, for example the use of the "i" symbol, referred to below, should be used. Anyone whose website uses or allows third party cookies must ensure that the right information is delivered to users so they can make informed choices.

As an alternative businesses may wish to consider using a non-cookie website. A simple brochure-style website with no way to login and no e-commerce functionality may not use cookies, meaning that the new law will not affect the website. This option may not be practical for many businesses as it could place them at a competitive disadvantage to competitors and sites outside the EU. A non-cookie site may lose revenues from advertising meaning that it is not cost effective to run such a website. Organisations could charge for these sites but is it unlikely that users will pay to see such a website.

In the absence of definitive methods a hybrid of the above methods is likely to be the way forward for the time being at least.

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Internet of Manufacturing
  Tue 6th Mar/2018
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