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Disclaimer

 

The author reserves the right not to be responsible for the topicality, correctness, completeness or quality of the information provided. Liability claims regarding damage caused by the use of any information provided, including any kind of information which is incomplete or incorrect,will therefore be rejected. All offers are not-binding and without obligation. Parts of the pages or the complete publication including all offers and information might be extended, changed or partly or completely deleted by the author without separate announcement.

 

2. Referrals and links

 

The author is not responsible for any contents linked or referred to from his pages - unless he has full knowledge of illegal contents and would be able to prevent the visitors of his site fromviewing those pages. If any damage occurs by the use of information presented there, only the author of the respective pages might be liable, not the one who has linked to these pages. Furthermore the author is not liable for any postings or messages published by users of discussion boards, guestbooks or mailinglists provided on his page.

 

3. Copyright

 

The author intended not to use any copyrighted material for the publication or, if not possible, to indicate the copyright of the respective object. The copyright for any material created by the author is reserved. Any duplication or use of objects such as images, diagrams, sounds or texts in other electronic or printed publications is not permitted without the author's agreement.

 

4. Privacy policy

 

If the opportunity for the input of personal or business data (email addresses, name, addresses) is given, the input of these data takes place voluntarily. The use and payment of all offered services are permitted - if and so far technically possible and reasonable - without specification of any personal data or under specification of anonymized data or an alias. The use of published postal addresses, telephone or fax numbers and email addresses for marketing purposes is prohibited, offenders sending unwanted spam messages will be punished.

 

5. Legal validity of this disclaimer

 

This disclaimer is to be regarded as part of the internet publication which you were referred from. If sections or individual terms of this statement are not legal or correct, the content or validity of the other parts remain uninfluenced by this fact.



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The EU cookie law (e-Privacy Directive)

The law which applies to how you use cookies and similar technologies for storing information on a user’s equipment such as their computer or mobile device changed on 26 May 2011.

We’ve answered some of your FAQs in a YouTube video, summarising how you can comply and the approach the ICO is taking to enforcement. (Playing YouTube videos sets a cookie.)

 

ICO guidance

Updated in May 2012, our cookies guidance sets out the changes to the cookies law and explains the steps you need to take to ensure you comply.

Download the ICO cookies guidance (pdf)

Our guidance includes additional information about implied consent:

  • Implied consent is a valid form of consent and can be used in the context of compliance with the revised rules on cookies.
  • If you are relying on implied consent you need to be satisfied that your users understand that their actions will result in cookies being set. Without this understanding you do not have their informed consent.
  • You should not rely on the fact that users might have read a privacy policy that is perhaps hard to find or difficult to understand.
  • In some circumstances, for example where you are collecting sensitive personal data such as health information, you might feel that explicit consent is more appropriate.

Find out more about the action we're taking on cookies

European data protection authorities opinion

In June 2012, European data protection authorities (as part of the Article 29 Working Party) adopted an opinion which clarifies that some cookie uses might be exempt from the requirement to gain consent:

  • Some cookies can be exempted from informed consent under certain conditions if they are not used for additional purposes. These cookies include cookies used to keep track of a user’s input when filling online forms or as a shopping cart, also known as session-id cookies, multimedia player session cookies and user interface customisation cookies, eg language preference cookies to remember the language selected by the user.
  • First party analytics cookies are not likely to create a privacy risk if websites provide clear information about the cookies to users and privacy safeguards, eg a user friendly mechanism to opt out from any data collection and where they ensure that identifiable information is anonymised.

Cookies and personal data

Regulation 6 covers the use of electronic communications networks to store information, eg using cookies, or gain access to information stored in the terminal equipment of a subscriber or user.

Although devices which process personal data give rise to greater privacy and security implications than those which process data from which the individual cannot be identified, the Regulations apply to all uses of such devices, not just those involving the processing of personal data.

Where the use of a cookie type device does involve the processing of personal data, service providers will need to make sure they comply with the additional requirements of the Data Protection Act 1998 (the Act). This includes the requirements of the third data protection principle which states that data controllers must not process personal data that is excessive. Where personal data is collected, the data controller should consider the extent to which that data can be effectively processed anonymously. This is likely to be particularly relevant where the data is to be processed for a purpose other than the provision of the service directly requested by the user, for example, counting visitors to a website.

Confidentiality of communications and spyware

It should be remembered that the intention behind this Regulation is also to reflect concerns about the use of covert surveillance mechanisms online. Here, we are not referring to the collection of data in the context of conducting legitimate business online but the fact that so-called spyware can enter a terminal without the knowledge of the subscriber or user to gain access to information, store information or trace the activities of the user and that such activities often have a criminal purpose behind them.

Information to be provided

Cookies or similar devices must not be used unless the subscriber or user of the relevant 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.

The Regulations are not prescriptive about the sort of information that should be provided, but the text should be sufficiently full and intelligible to allow individuals to clearly understand the potential consequences of allowing storage and access to the information collected by the device should they wish to do so. This is comparable with the transparency requirements of the first data protection principle.

The Regulations state that once a person has used such a device to store or access data in the terminal equipment of a user or subscriber, that person will not be required to provide the information described and obtain consent (and discussed above) on subsequent occasions, as long as they met these requirements initially. Although the Regulations do not require the relevant information to be provided on each occasion, they do not prevent this.

Responsibility for providing the information and obtaining consent

The Regulations do not define who should be responsible for providing the information and obtaining consent. Where a person operates an online service and any use of a cookie type device will be for their purposes only, it is clear that that person will be responsible for complying with this Regulation.

Exemptions from the right to refuse a cookie

The Regulations specify that service providers should not have to provide the information and obtain consent where that device is to be used:

  • for the sole purpose of carrying out or facilitating the transmission of a communication over an electronic communications network; or
  • where such storage or access is strictly necessary to provide an information society service requested by the subscriber or user.

In defining an 'information society service' the Electronic Commerce (EC Directive) Regulations 2002 refer to 'any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, and at the individual request of a recipient of a service'.

The term 'strictly necessary' means that such storage of or access to information should be essential, rather than reasonably necessary, for this exemption to apply. However, it will also be restricted to what is essential to provide the service requested by the user, rather than what might be essential for any other uses the service provider might wish to make of that data. It will also include what is required to comply with any other legislation the service provider might be subject to, for example, the security requirements of the seventh data protection principle.

Where the use of a cookie type device is deemed 'important' rather than 'strictly necessary', those collecting the information are still obliged to provide information about the device to the potential service recipient and obtain consent.

Wishes of subscribers and users

Regulation 6 states that consent for the cookie type device should be obtained from the subscriber or user but it does not specify whose wishes should take precedence if they are different.

There may well be cases where a subscriber, for example, an employer, provides an employee with a terminal at work along with access to certain services to carry out a particular task, where to effectively complete the task depends on using a cookie type device. In these cases, it would not seem unreasonable for the employer’s wishes to take precedence.

However, it also seems likely that there will be circumstances where a user’s wish should take precedence. To continue the above example, an employer’s wish to accept such a device should not take precedence where this will involve the unwarranted collection of personal data of that employee.