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Will UK.gov crack down on itself for missing Cookie Law deadline?

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Most government websites will fail to comply with new laws on cookies when the Information Commissioner's Office (ICO) begins formally enforcing them next week, the Cabinet Office has said, according to reports.

Websites store cookies on a user's computer, but new EU laws say users should be given the choice whether they consent to websites tracking their behaviour.

Although the new laws were implemented in the UK by amendments to the Privacy and Electronic Communications Regulations (PECR) last year, the ICO placed a year's hiatus on enforcement action in order to enable organisations time to comply with them. That deadline expires next week, with the ICO set to begin its enforcement regime from 26 May.

However, according to a report by the BBC, the Cabinet Office has said that the "majority" of government websites will not meet the requirements of PECR in time for the deadline.

"As in the private sector, where it is estimated that very few websites will be compliant by the 26th May, so it is true of the government estate," a Cabinet Office spokesman said, according to the BBC. "The majority of department websites will not be compliant with the legislation by that date."

Work is ongoing to ensure that the websites, believed to belong to both local authorities and central Government departments, "achieve compliance at the earliest possible date," the Cabinet Office said, according to the BBC.

In 2009 the EU's Privacy and Electronic Communications (e-Privacy) Directive was changed to demand that storing and accessing information on users' computers was only lawful "on condition that the subscriber or user concerned has given his or her consent, having been provided with clear and comprehensive information … about the purposes of the processing". Consent must be "freely given, specific and informed".

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, for example.

Last year PECR was amended in the UK to implement the changes. It introduced a requirement that website operators generally must obtain users' "informed consent" for the use of cookies.

The ICO has issued non-prescriptive guidance on how website operators can meet the new consent requirements.

The methods for obtaining user consent can include using 'pop-up' prompts on users' screens that ask for consent to cookies when the individuals access web pages. Consent can also be obtained by using terms of use or terms and conditions that ask for consent from users when they first register or sign-up to websites.

Consent can also be gleaned from preferences that users choose when visiting a website. Website features, such as videos, that remember how users personalise their interaction can also determine user consent.

Website operators can also elect to display text at either the top or bottom of web pages that asks for consent and links through to more detailed explanation about their use of cookies.

The government has been working with website browser manufacturers in the hope that more intuitive privacy controls over cookies would be developed and be available to users through their browser settings. However, despite advances towards the development of new standards in this area, those technical solutions are not yet available.

A spokesperson for the ICO told Out-Law.com last year that it was up to individual organisations to work out which technical method is best suitable for obtaining users' consent.

“By next May we expect businesses and organisations to have clear information about the way in which cookies are operating on their websites and to be obtaining consent to set those cookies," they said. "Exactly how far each organisation will need to go in getting consent will depend on exactly what the purpose of the cookie is. Certainly, having widely available and easily understood information that is relevant to users’ is fundamental."

The ICO has the power to impose penalties of up to £500,000 on websites that breach PECR.

The watchdog has already intimated that a single breach could be sufficient to trigger the levying of a fine. However, it has also admitted that it is not likely to take action against website operators that use data analytics cookies, which measure the number of users of websites and how those individuals use them, if those operators have failed to meet the standards for consent for those cookies.

The ICO is due to host a press briefing today at which further detail about the way the watchdog is planning to enforce the new laws is likely to emerge.

Copyright © 2012, Out-Law.com

Out-Law.com is part of international law firm Pinsent Masons.

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