Are you using cookies on your web site?

Are you using cookies on your web site?

DISCLAIMER:

The information contained here is by no means professional legal advice and the warranty on the accuracy or the continued accuracy of the information here is completely disclaimed and should not be relied upon, or constituted as, legal or professional advice. For compliance to the Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2011 please consult a professionally qualified lawyer.

It is not as the result of a domestic Act being brought in by Parliament, but as the result of the “ePrivacy” European directive amendment that concerned the use of cookies on online web sites. It especially concerns cookies being used for tracking purposes – for example, for advertisements or statistical information.

The UK government implemented the directive for compliance, with the Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2011 (hereinafter also referred to as “2011 Regulation”)

From 26th May 2012 onwards, the Information Commissioner will start enforcing the 2011 Regulation and will be especially important for online web sites that operate businesses to start bringing measures to comply with the legislation. In essence, you must notify your users about the use of cookies (and if cookies are already being set).

What are cookies?

Cookies are small text files placed on a web site visitor’s computer so certain information can be sent back to the web site that it may need for certain reasons. For example, cookies can be used to:

  • Allow visitors to remain logged in to a web site.
  • Understand whether a visitor has visited the web site before.
  • Advertising purposes – for example, advertising networks will make use of cookies to understand what sort of web sites you’re interested in. This is possible because online web sites that use the same advertising network will have cookies set that means that the advertising network will know what sort of advertisements are relevant to you, sometimes based on what advertisement(s) you’ve clicked on or what web sites you have visited recently.
  • Sales purposes – many companies (including Webhosting UK) make use of cookies to remember visitors that have been linked to the company web site by the use of an affiliate referral link. A cookie is then set on the user’s computer so the affiliate can be given a commission if a sale is generated. These cookies usually last for quite a long time.
  • Tracking purposes – some cookies may be used for tracking purposes which can be used to build up a picture of the kind of web sites you visit often and can theoretically be used to understand your interests. Some people consider this an invasion of privacy. Usually, tracking cookies are placed by third party web sites by the use of advertisements being visible on the web site you are accessing – some browsers will, by default, not permit third-party cookies from being set but others allow this by default. However, most browsers allow you to change this setting in the application settings or preferences.

Why does this law even exist?

While web site owners will find this inconvenient, my belief is that it will also inconvenience visitors as most UK business web sites will have such a notice on their site, and no practices will really change when it comes to the use of cookies for tracking, sales or advertising purposes – visitors will likely either:

  • Ignore the notification and/or hide it.
  • Find it confusing.
  • Find it annoying

To be honest, if the European Union is so concerned about the use of cookies for tracking purposes they should force browsers to have certain settings out of the box that can protect user privacy than requiring most web sites within the European Union to provide a notice to the end user which doesn’t change anything except add more legal information that needs to be displayed on every page of a web site.

But nonetheless, the EU directive amendment is in effect and the 2011 Regulation is now in force. The maximum fine a company can receive for breach of the 2011 Regulation is £500,000 – but do bear in mind this is the maximum fine a company can be handed. If you don’t already have provisions in place to comply with the 2011 Regulation, it is important you consider putting some in place.

Notification about the use of cookies

(I’d just like to remind one more time – Webhosting UK COM Limited and its employees and representatives are not lawyers and any advice, suggestions or information contained herein cannot be relied upon as professional legal advice – please consult a qualified lawyer for legal or technical advice to comply with the 2011 Regulation.)

If you use a WordPress blog, there is a plugin called “Cookie Law Info” that displays an overlay bar at the bottom of the page window alerting users about the use of cookies with the second button the row to signify the user can get more information about the site’s use of cookies.

You can set the name of the page that the button references to within the “Cookie Law Info” settings. This page can be used to display information about what cookies are and then you can get the plugin to list all of the cookies your WordPress blog is using in a table.

You can use the Chrome browser to see all the cookies and sessions that may be set on your blog and for the duration a cookie is set (and other browsers that have these features built-in). Check out the “Cookie Law Info” settings to configure the page to display the cookie information and tabular list of the cookies that may be potentially set on your blog.

In the “Using the Shortcodes” section of the “Cookie Law Settings” page, it’ll list all the tags you can use – on the “cookie information” page where your users can get more information about the use of cookies, you’ll want to use the tag that displays the tabular information on that information page.

Using XenForo.

If you use the XenForo forum software suite, from version 1.1.3 they have a “Cookie Notice” option you can enable in Options > Basic Board Information > Show Cookie Notice on First Visit.

Implied consent.

You do not necessarily need the user’s consent to use cookies. If the user continues to use the web site, that is considered “implied consent” whereby they are implying they are happy with the use of cookies if they continue to use and visit the web site, blog or forum. If the user was genuinely not happy with the use of cookies, they would have left.

Here are some example notifications sites are using:

The Register uses cookies. Some may have been set already. Read about managing our cookies. Please click the button to accept our cookies. If you continue to use the site, we’ll assume you’re happy to accept the cookies anyway. —

This website uses cookies to improve your experience. By continuing to use our site, we’ll assume you’re ok with this. —

We use cookies to ensure that we give you the best experience on our website. If you continue without changing your settings, we’ll assume that you are happy to receive all cookies on the BBC website. —

By using this site, you agree we can set and use cookies. For more details of these cookies and how to disable them, see our cookie policy. —

It is better protection for you as a web site owner to ensure you make the cookies notice clearly visible to the visitor. Some web sites (such as the itv website) have their cookie notice displayed at the bottom of the page, some use overlay bars at the bottom that consistently stay there until the user has explicitly hidden the notification, while some others warn the user that the notification will only be displayed once.

In general, if you are going to be using cookies for tracking, analytical or statistical purposes, be clear about this on the “cookie information” page. You should also state on that page that users can opt not to have certain cookies placed if they do not use certain functions of the site, such as the login and registration functions.

Lastly, remind your visitors that they can disable the use of cookies altogether within their browser settings – perhaps provide a brief explanation on how to do this in the major browsers – Internet Explorer, Firefox, Safari, Chrome and Opera.

It is likely a good idea to reference your cookies policy (cookie information page) within your Privacy Policy. However, merely stating in the Privacy Policy that cookies are used without notifying users when they first access your site and having a page with information about what cookies are, what cookies are set, why and for what duration, may not be considered satisfactory compliance to the 2011 Regulation.

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