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UK.gov 'falls short' of legal obligation to enforce EC cookies Directive

Issues only 'partial notification' to Brussels

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On the eve of a new European Union directive on web cookies coming into force tomorrow, the UK government has issued only a "partial notification" to Brussels' officials on how it will implement the changes into UK law, The Register has learned.

The Commission's spokesman Jonathan Todd confirmed to us this morning that it was not "immediately clear" what was missing from the measures.

"The legal obligation is to notify measures to implement all the legislation in question. Partial notification falls short of that," he said.

Late yesterday Culture Minister Ed Vaizey issued a defensive "open letter" setting out his department's stance on the UK's implementation of amendments to the e-Privacy Directive, which were made through a secondary legislation laid out in Parliament on 5 May.

He reiterated the government's "light touch, business friendly" approach to the framework.

Vaizey's missive came before the UK government had notified the European Commission about its implementing measures.

"We have made it clear that it is industry that is best placed to develop technical solutions that meet the requirements of the Directive. The wording of the UK implementation reflects and enables this," the minister wrote.

The Commission states the following requirements on the cookies' measures:

The new rules give Internet users the right to be better informed about data stored and accessed in their computer, smartphone or other devices connected to the Internet (such as cookies - small text files stored by a user's web browser).

In the case of data not related to the service currently accessed by the user, the new rules require Member States to ensure users have given their consent before such data is stored or accessed. Before being asked for their consent, the user must be given information about what the data collected about them is to be used for (e.g. targeted behavioural advertising).

The rules do not require websites to obtain consent from the user in the case of cookies that directly relate to the provision of a service explicitly requested by the user (e.g. cookies to remember language preferences or the content of shopping baskets on e-commerce websites).

Industry associations and other interested parties are free to agree on codes of conduct to implement the new rules in user-friendly ways (e.g. based on browser settings) on condition that they comply with the legal requirements of the Directive. The Commission recommends that such work is conducted in close cooperation with Member States' data protection authorities to ensure compliance with the law.

In September 2010 the government transposed EU law into UK law word-for-word, which led to some criticism from British businesses confused by the legislation and worried that they wouldn't have their cookie-compliant house in order by, well, now.

The DCMS had consulted with the Information Commissioner's Office, which issued its guidelines (PDF) on the cookies law today. It said website owners had one year to consent to comply with the legislation.

“Browser settings giving individuals more control over cookies will be an important contributor to a solution. But the necessary changes to the technology aren’t there yet. In the meantime, although there isn’t a formal transitional period in the regulations, the government has said they don’t expect the ICO to enforce this new rule straight away," said Information Commissioner Christopher Graham.

"So we’re giving businesses and organisations up to one year to get their house in order. This does not let everyone off the hook. Those who choose to do nothing will have their lack of action taken into account when we begin formal enforcement of the rules."

Meanwhile, the European Commission has been clear about what will happen if any of the 27 EU states fail to comply.

"We will closely monitor all Member States' implementation and will open infringement procedures against any Member State that fails to notify implementing measures by the 25th May deadline," Todd told El Reg last month. ®

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