New Cookie Advice - Fabric Digital
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New Cookie Advice Fabric

New Cookie Advice

29th May // 2012 - This post is archived and may no longer be relevant

The recent publicity surrounding cookies seems to have prompted a change in the way many websites are treating the issue and some revised advice from the Information Commissioners Office (ICO). The Authority now says that implied consent is a valid way for websites to obtain consent from users and they are no longer saying that permission should be sought before cookies are placed. This clarification means that it should be easier to comply with the new law which came into force in may 2011 but will only be enforced from the end of this month. The ICO has always been that it would have a soft touch approach and wait for a complaint before starting any enforcement action.

Despite this, many websites have decided to display prominent banners explaining their use of cookies. At Fabric, we originally felt that this would detract from user experience, however as many high profile sites are now using this approach our advice has changed. As we have always said the minimum any site should do us conduct a cookie audit to see what types of cookies are being used, whether they are still needed and how intrusive they are. However it seems more sites are adopting banners to explain what they are doing. Until the ICO clarified its advice almost all of these did not actually comply with the law as "express informed consent" is needed before placing any cookies. Most banners simply explain a website's approach and give an opt-out rather than asking for consent to place cookies. Even if a site allows a user to opt out, it actually needs to place a cookie to remember this user choice. But has permission been given to place that cookie? The ICO clarification means that banners are now an acceptable way forward.

When looking at compliance website owners need to consider the impact of users declining cookies on the analysis of web statistics. When the ICO implemented a banner that complied with the law there was apparently a 90% drop in Google Analytics data.

We still feel that it is very unlikely for the ICO to start an investigation or even prosecute as long as a company has done a cookie audit and explains its use of cookies. However if users expect to see a cookie banner on sites then there is no harm in putting one on, even if it doesn't strictly comply with the law - and with the new guidance it should protect you against any investigation by the ICO.

Penned by Arthur Wilson