Feeds

UK passes buck on Europe's cookie law with copy-paste proposal

You sort it out

Security for virtualized datacentres

Opinion The government has let businesses down by refusing to clarify a law on cookies that has privacy regulators and advertisers at loggerheads, leaving publishers languishing in the middle, unsure whether their advertising is lawful or not.

This week the government had the chance, when transposing EU law into UK law, to find a way to provide UK firms with much-needed clarity, but it passed it up. Instead it will write Brussels-authored confusion into UK law, word for word.

OUT-LAW reported yesterday that the Department for Business Innovation and Skills (BIS) has launched a consultation on its plans for implementing a suite of five EU Directives, known collectively as the European Electronic Communications Framework.

One of these Directives amends the existing Directive on Privacy and Electronic Communications. The new law includes an Article that demands that websites get every visitor's prior consent before sending cookies to their machines.

An exception exists where the cookie is "strictly necessary" for the provision of a service "explicitly requested" by the user – so cookies can take a user from a product page to a checkout without the need for consent. Other cookies will require prior consent, though.

This law, which is not yet in force across Europe, immediately appeared to hamper the prospects for advertisers, in particular the serving of behaviour-based ads, which tend to generate more clicks and more income for publishers.

The EU law is not just bad for business: it is bad for consumers too. It adds small-print, clicks and confusion without improving privacy in any meaningful way. I have written before that the new EU law is a shambles.

The Article that demands prior consent appears to be qualified by a Recital that says: "Where it is technically possible and effective, in accordance with the relevant provisions of [the Data Protection Directive], the user's consent to processing may be expressed by using the appropriate settings of a browser or other application."

A recital (a context-setting introduction to a Directive) is not meant to qualify an Article (a rule of the Directive) yet this one appeared to do just that. So businesses were left to wonder: can we rely on the cookie settings in a user's browser to indicate consent, or do we need to ask them a question about cookies when they visit our site?

The advertising industry is adamant that you can rely on cookie settings. It has relied on that recital as justification for saying that cookie settings indicate consent. Privacy watchdogs disagree. They have pointed out that most browsers accept cookies by default. "It is a fallacy to deem that on a general basis data subject inaction (he/she has not set the browser to refuse cookies) provides a clear and unambiguous indication of his/her wishes," said the Article 29 Working Party. In their view, to comply with this law, visitors should be asked a question about cookies.

This is a muddle. It is not one that BIS could resolve.

If BIS deviates too far from the wording of the Directive, to pass a UK law that makes compliance straightforward and consumer-friendly, it risks infraction proceedings in Europe for failing to transpose the Directive into UK law properly. It also runs the risk that other countries in Europe will transpose the Directive differently – giving businesses the headache of having to detect a website visitor's home country to decide whether or not to present cookie questions.

So the easiest thing for BIS to do is to copy and paste the Directive into UK law and let someone else sort out the ambiguity. That is what it proposes. Frustratingly, though, it has not acknowledged that any problem exists. Instead, BIS appears to suggest that the Directive was nice and clear in the first place.

Choosing a cloud hosting partner with confidence

More from The Register

next story
Scrapping the Human Rights Act: What about privacy and freedom of expression?
Justice minister's attack to destroy ability to challenge state
WHY did Sunday Mirror stoop to slurping selfies for smut sting?
Tabloid splashes, MP resigns - but there's a BIG copyright issue here
Hey Brit taxpayers. You just spent £4m on Central London ‘innovation playground’
Catapult me a Mojito, I feel an Digital Innovation coming on
Google hits back at 'Dear Rupert' over search dominance claims
Choc Factory sniffs: 'We're not pirate-lovers - also, you publish The Sun'
EU to accuse Ireland of giving Apple an overly peachy tax deal – report
Probe expected to say single-digit rate was unlawful
Inequality increasing? BOLLOCKS! You heard me: 'Screw the 1%'
There's morality and then there's economics ...
While you queued for an iPhone 6, Apple's Cook sold shares worth $35m
Right before the stock took a 3.8% dive amid bent and broken mobe drama
EU probes Google’s Android omerta again: Talk now, or else
Spill those Android secrets, or we’ll fine you
prev story

Whitepapers

Forging a new future with identity relationship management
Learn about ForgeRock's next generation IRM platform and how it is designed to empower CEOS's and enterprises to engage with consumers.
Storage capacity and performance optimization at Mizuno USA
Mizuno USA turn to Tegile storage technology to solve both their SAN and backup issues.
The next step in data security
With recent increased privacy concerns and computers becoming more powerful, the chance of hackers being able to crack smaller-sized RSA keys increases.
Security for virtualized datacentres
Legacy security solutions are inefficient due to the architectural differences between physical and virtual environments.
A strategic approach to identity relationship management
ForgeRock commissioned Forrester to evaluate companies’ IAM practices and requirements when it comes to customer-facing scenarios versus employee-facing ones.