If you are one of many, hoping that the cookie law might change before you had to implement ‘explicit consent’ to your cookies being served on your website, then you might be pleased to note that the law has changed to include ‘implied consent’ in respect of some cookies.
Don’t jump for joy just yet though!
Not being a lawyer, I find that the ‘implied consent’ elements of the revised law remain ambiguous in respect of validity…
Cookie Law Revision Extracts
“Implied consent is certainly a valid form of consent but those who seek to rely on it should not see it as an easy way out or use the term as a euphemism for “doing nothing”. In many cases, to create a situation in which implied consent is acceptable to subscribers, users and the regulator it would still be necessary to follow the steps set out in the Information Commissioner’s existing guidance.”
“The understanding is all on the website operator’s side and the user “giving” consent is unaware that their actions are being interpreted in this way. The user is not informed so in the context of the Regulations, this is not valid consent“.
UH! – Valid – Not Valid?
So you can use valid ‘implied consent’ rather than ‘do nothing’ but the user of your website doesn’t realise they’ve given their ‘implied consent’ and have had, for example Analytics, cookies set as soon as they arrived on a page of your website.
Therefore, technically, haven’t you breached the cookie law, as the ‘valid’ implied consent given is actually ‘not valid’?
About Analytics Extract
“The Information Commissioner recognises that gaining ‘explicit opt-in consent’ for analytics cookies is difficult and that ‘implied consent’ might be the most practical and user-friendly option.”
Well, yes, I can’t argue with that. Gaining consent for analytics cookies, after the event, is pretty much impossible, so implied consent surely ‘has to be’ the most practical and user-friendly option. I’m presuming in conjunction with a cookies policy in which you inform visitors what they’ve consented to.
Educating The General Public
The regulations do go on to state amongst many other attempts at ‘clarification’ that…
“The more it becomes second nature for users to appreciate that on most sites they visit certain things are more likely than not going to happen then the more it will become acceptable for their actions – setting their browser up in a particular way, using the site in a particular way – to be interpreted as an indication that they understand what is happening and, by extension, that they consent to cookies.”
Cookie Revisions Still As Clear As Mud?
Overall the revisions don’t offer greater clarity for either webmasters, wishing to analyse their site visits and provide a pleasant, seamless, website experience for the user etc…
…or for members of the public, who may have concerns about how their online activities are being recorded or tracked.
No doubt there will be more, and hopefully clearer, clarifications coming out as the law evolves.
For now, you can find information and resources: