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FOI request reveals privacy watchdog still not ready to deal with complaints

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UPDATED According to a freedom of information (FOI) request submitted by PC Pro magazine, 320 websites have been reported to the privacy watchdog through its online submission tool since a year's 'grace period' ended on 26 May. However, none of those sites have been investigated.

"At present the information has not yet been analysed as the team which will have responsibility for this is not in place yet," the ICO told PC Pro. "It is intended that once the data has been analysed any organisations not in compliance will be identified, then further action will be considered as appropriate."

The watchdog has now hired employees to investigate allegations of cookie non-compliance, as well as other areas of the new Privacy and Electronic Communication Regulations (PECR) including electronic marketing and unsolicited text messages, according to the report. It told the magazine that it expected the team to start work at the end of this month.

The ICO has rejected the claim and said it has already written to the 75 most-visited UK sites to enquire about their cookie law procedures.

"The ICO has been working to ensure compliance with the cookie law since it was introduced, with enforcement work complementing an education programme and significant liaison with the industry," said an ICO statement.

“The twelve-month grace period we gave companies to comply with the law ended in May 2012, at which point our enforcement team wrote to 75 of the most visited websites, asking what steps they had taken to achieve compliance," it said. "Our recently established intelligence hub is monitoring the 75 websites contacted."

“We have reviewed the 331 responses collected from our online cookie concern reporting tool and the next step is to write to all websites highlighted," it said. "A progress update, including a list of all the websites contacted, will be published on our website in November, six months after the cookie concern reporting tool was established.”

Cookies are small text files that record internet users' online activity. In 2009, the EU's Privacy and Electronic Communications (e-Privacy) Directive was changed to state that storing and accessing information on users' computers would only be 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 – for example, to take the user of an online shop from a product page to a checkout.

Amendments to the PECR implemented the Directive into UK law last May. The ICO placed a year's grace on enforcement action in order to give website operators time to implement measures to comply with the new consent requirements, however that period has now passed. The ICO can issue fines of up to £500,000 to organisations whose websites do not comply with the PECR.

The ICO allows web users with "concerns about cookies" to report offending websites through an online reporting tool. However, it told PC Pro that sites reported using this tool would not necessarily be individually investigated. Submissions are "not being taking forward as individual complaints", it said; adding that the purpose of the form was to help it to "monitor organisations' adherence to the rule relating to cookies, and identify sectors where further advice or enforcement activity may be required".

Copyright © 2012, Out-Law.com

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

Editor's note 23/8/12: The story was updated to include the ICO's response to the allegations.

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