ICO revisits approach to cookie law consent – what does this mean for other organisations?

Last month, the Information Commissioner’s Office (ICO) announced that it was going to change the way that it sought to obtain consent from users to the use of cookies on its website, as required under laws that came into force in May 2011 (known as the cookies law). Those changes were implemented on Friday.

What’s changed?
Firstly, the ICO’s website now sets certain non-essential cookies automatically upon arrival. This is a big change from the old approach and marks a shift from prior, explicit, consent to implied consent.

After moving to prior, explicit, consent, recorded traffic to the ICO’s website dropped by 90% as a consequence of users failing to accept cookies (including a Google Analytics cookie used to analyse traffic). Reinstating implied consent will mean that those figures will go shooting back up, giving the ICO a much better idea about how people use itse website. According to the ICO’s news release, this was one of the main drivers behind the change to its cookie consent policy.

Secondly, the ICO has updated its banner notification. The old one looked like this:
Screenshot of ICO website in 2012

The new one looks like this. The banner has now moved to the bottom of the screen (but not the bottom of the page) and is a bit more subtle (no contrasting text colour or box shading to make it stand out):
Screenshot of the ICO website. 4 February 2013

The banner message has been amended to maked it clear that the website has “placed” cookies (as opposed to “will place”), and provides a pointer to allow users to change settings. Notably, the banner will remain until the user clicks “don’t show this message again” or moves to another page.

Surprisingly, the banner message still says that cookies are used to “make this website better”. Given the ICO’s otherwise very strict adherance with the cookie law rules, I’ve always thought that this was a very ambiguous basis upon which to obtain user consent – better for whom? The user? The ICO?

Thirdly, the ICO has shifted information on the use of cookies to a new standalone cookies page.

Finally, on that page (but not on the banner itself) is an option for users to delete non-essential cookies and not set them again:
Screenshot of cookies opt out button on ICO website
This allows users who do not wish cookies to reject them, notwithstanding that they were automatically placed upon arrival at the website. Unsurprisingly, this cookie control tool relies upon a cookie to remember the user’s setting.

What does this mean for other organisations?
Whilst the ICO argues that its revised approach is consistent with its own guidance, other organisations will take some comfort from the ICO’s new approach to cookie consent:

  • The ICO is of the view that knowledge about cookies amongst internet users is much greater than it was 8 months ago.
  • Explicit consent is therefore no longer considered necessary by the ICO for low risk, but non-essential, cookies.
  • Setting cookies on arrival, based upon implied consent, can be appropriate depending on the potential intrusiveness of the cookie. Pre-setting an analytics cookie is one thing; doing the same with a behavioural advertising cookie is quite another.
  • Banners or other methods used to notify users about the use of cookies may not need to be as prominent (design intrusive) as perhaps previously thought.
  • Using a cookie to identify a user that has opted out of other cookies is considered by the ICO to be an appropriate approach, provided users are notified about this.
  • Pointing users to third party websites for further information on third party cookies (such as those used for embedded YouTube clips on the ICO’s website) remains the ICO’s method of dealing with third party cookies.

If you would like to discuss how your website or mobile app deals with cookie law, or would like to understand the implications of the ICO’s revised approach for how you currently handle cookies, please visit our cookies page or get in touch.

Martin Sloan

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