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How the Cookie Crumbles

2nd May, 2012

Since my last blog, things have got more complicated.  I know that’s not what you want to hear.

Sadly, the old 10 O’Clock News before Match of the Day mantra of “If you don’t want to know the results look away now” may not be a possibility.

Fact 1: On 26 May 2012 we all have to comply with the new cookie regulations.

Fact 2: The new cookie regulations require opt-in, rather than opt-out, and no cookies should be put onto the user’s PC without their consent.

Fact 3: Most sites don’t work without cookies and, in-fact, download cookies before the user has had a chance to do anything, let alone opt in.

Fact 4: Hang on, doesn’t Fact 3 make a bit of a nonsense of Fact 2?

So we all have a problem.  And by all, I mean anyone who has a website which is more than a one page brochure site.

In order to comply fully with the law the first thing a user should see on a site is a big flashing box that says “Warning: this site is about to download cookies onto your PC.  Click YES to accept them”.  If they do that’s fine, BUT:

Fact 5: Recent research showed that only 23% of those surveyed said they would be happy to opt-in to cookies on a website.

So you may lose 77% of your web-traffic.  You’ll also lose all your analytics.  And a website without analytics is not much use.

So, as a corporate lawyer, I have to tell you that you must, as of 26 May, have a big flashing box that may well lose you your analytics and 77% of your traffic.  Your marketing department will not like me.

They may well point out that no-one else is doing that.  The more eagle eyed may well point to a recent advice from the Government Digital Service to all government users that “Provided clear information is given about [cookies’] activities we are unlikely to prioritise first-party cookies used only for analytical purposes in any consideration of regulatory action”.

So the government is sort of hinting to its own users that they need not be too worried.  Will this be a Cookie Kinder Scout?  Does the ICO have the resources or the inclination to prosecute every website owner in the country?  Will they go for a few big profile scalps?  Or will they, more sensibly, go after that small number of people sending malicious cookies?

We don’t know!

So what do we suggest?  This blog is not legal advice and I suspect that, if you asked a lawyer for legal advice, he or she hypothetically might tell you to go for the big flashing lose your traffic option.

On a more practical level, firstly you should beef up your Privacy Policy and Cookie Policy to make sure that it’s clear what cookies you are using and what they do.  Give users clear guidance how to disable them if they want to.  Have a link to your Cookie Policy on every page.  You may wish to go for a discreet box in May and June on your home page saying that you use cookies with a link to your Cookie Policy.

You may wish to speak to your IT people to make sure you can go for the opt-in option if on 27 May swarms of government inspectors start swooping on unwary website owners and imposing fines (which as a corporate lawyer I must point out to you are up to £500,000).  The fact that the GDS has hinted that a few analytical cookies might be OK will probably not be a good defence.

I regularly check the sites of big companies and government departs to see what they are doing.  So far no real change.

So watch this space and be prepared.  If you need a fixed price set of website Ts&Cs we can provide that for you.  Check out our website at http://aarons.weareweb.space/business/business-services/commercial/website-terms-and-conditions/.

Mark Briegal is a corporate partner at Aaron & Partners LLP based in Chester.  He can be contacted on 01244 405563 or at [email protected].

 

 

 

 

 

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