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

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"The internet as we know it today would be impossible without the use of … cookies," says BIS. "Many of the most popular websites and services would be unusable or severely restricted and so it is important that this provision is not implemented in a way which would damage the experience of UK Internet users or place a burden on UK and EU companies that use the web.

"The Directive acknowledges this by saying that consent is not required when the cookie is strictly necessary to deliver a service which has been explicitly requested by the user," it says.

That much is true; but that is not the problem for businesses in complying with this Directive. The problem is that they want to serve some cookies that may not strictly be necessary for the delivery of a service requested by the user, to make their advertising more effective.

Businesses consider this harmless to the user's privacy, but they fear that if they ask permission, at best they will interrupt the user experience at their website, at worst the user will refuse them permission to serve targeted ads and their business will suffer.

A business might argue that its website is free to use only because it is supported by advertising. If cookies are used in the serving of that advertising, can that business argue that the cookies are "strictly necessary" for the delivery of the website? Probably not, in my view, but it is an issue that BIS has avoided altogether.

"Given the fast-moving nature of the Internet, it would be very difficult to provide an exhaustive list of what uses are strictly necessary to deliver a particular online service and if we implemented in this way it would risk damaging innovation," BIS said. That sounds like a cop-out.

"We therefore propose to implement this provision by copying out the relevant wording of the Article, leaving ICO [the Information Commissioner's Office] (or any future regulators) the flexibility to adjust to changes in usage and technology," says BIS. "Recital 66 of the amending Directive provides useful clarification of the Article text. We are considering including appropriate elements of this in the implementing regulations."

Regurgitating the Directive's wording, without any further guidance, is not helpful. Recital 66 does not provide useful clarification of the Article text. If it was useful clarification, there would not be a disagreement between the advertising industry's trade body and the Article 29 Working Party on the question of whether or not websites have to ask visitors questions about cookies.

So the government has missed the first opportunity to clarify this law. It has passed the problem down the line to the ICO. Businesses must await guidance from the ICO, which may or may not match the guidance of the Article 29 Working Party.

It would have been a brave move for BIS to propose legislation that provides clarity and risk those infraction proceedings. But the government has done this before. BIS could have supported explicitly the view of the IAB or the privacy regulators, or it could have suggested a fresh interpretation of Recital 66.

A less courageous move might be to transpose the Directive word for word, maximising the prospect of harmonised confusion across the EU, but mitigate the problems by providing guidance on what the government thinks the law actually means. Weaker still: avoid the guidance, but acknowledge the problems that exist. Instead, BIS has fudged the whole issue. There's no problem here, folks. Move along.

If your business is affected by this issue, you can share your views with BIS by responding to its consultation paper (74-page / 377KB PDF).

By Struan Robertson, editor of OUT-LAW.COM. The views expressed are Struan's and do not necessarily represent those of Pinsent Masons. You can follow Struan at Twitter.com/struan99.

Copyright © 2010, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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