Feeds

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

You sort it out

The Power of One Infographic

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.

Mobile application security vulnerability report

More from The Register

next story
BBC goes offline in MASSIVE COCKUP: Stephen Fry partly muzzled
Auntie tight-lipped as major outage rolls on
iPad? More like iFAD: We reveal why Apple fell into IBM's arms
But never fear fanbois, you're still lapping up iPhones, Macs
Sonos AXES support for Apple's iOS4 and 5
Want to use your iThing? You can't - it's too old
Stick a 4K in them: Super high-res TVs are DONE
4,000 pixels is niche now... Don't say we didn't warn you
Philip K Dick 'Nazi alternate reality' story to be made into TV series
Amazon Studios, Ridley Scott firm to produce The Man in the High Castle
There's NOTHING on TV in Europe – American video DOMINATES
Even France's mega subsidies don't stop US content onslaught
You! Pirate! Stop pirating, or we shall admonish you politely. Repeatedly, if necessary
And we shall go about telling people you smell. No, not really
Too many IT conferences to cover? MICROSOFT to the RESCUE!
Yet more word of cuts emerges from Redmond
Joe Average isn't worth $10 a year to Mark Zuckerberg
The Social Network deflates the PC resurgence with mobile-only usage prediction
prev story

Whitepapers

Implementing global e-invoicing with guaranteed legal certainty
Explaining the role local tax compliance plays in successful supply chain management and e-business and how leading global brands are addressing this.
Consolidation: The Foundation for IT Business Transformation
In this whitepaper learn how effective consolidation of IT and business resources can enable multiple, meaningful business benefits.
Application security programs and practises
Follow a few strategies and your organization can gain the full benefits of open source and the cloud without compromising the security of your applications.
How modern custom applications can spur business growth
Learn how to create, deploy and manage custom applications without consuming or expanding the need for scarce, expensive IT resources.
Securing Web Applications Made Simple and Scalable
Learn how automated security testing can provide a simple and scalable way to protect your web applications.