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'C'mon guys, make some sort of effort... please?'

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The Information Commissioner's Office (ICO) has set some website operators a deadline to begin efforts to comply with UK regulations that set out rules for the use of cookies.

Dave Evans, the ICO's group manager for business and industry, said that some website operators had failed to "engage" with the watchdog about their use of cookies. He said that the ICO would be "likely" to pursue enforcement action against operators that failed to comply with a deadline they have been set to work towards cookies compliance.

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.

The EU laws were implemented in the UK through amendments to the Privacy and Electronic Communications Regulations (PECR) last year and the ICO was tasked with enforcing the new law and handed the power to fine those that failed to comply up to £500,000.

Evans said that the ICO had managed to balance education about the new consent requirements for serving cookies and enforcement of PECR. He said that businesses should now "know they have to respond to the law."

"It might be a law they wish didn’t exist, but the simple fact is that it is here to stay," Evans said in an ICO blog. "The EU passed the legislation, the Department for Culture, Media and Sport (DCMS) implemented it, and it’s now the ICO’s job to regulate the organisations that have to comply with the law."

"Broadly speaking, there’s two ways we go about this: an education programme to inform the industry, and enforcement work to ensure compliance," Evans said. "So we’ve issued guidance and press releases, spoken at conferences, held meetings and workshops and even written to 75 of the most visited websites, asking what steps they had taken to achieve compliance and offering our help. We are working through the intelligence we have gathered to see if websites are taking action to increase the visibility of information about cookies, and already a fair number have.

"But we’re balancing that with enforcement: for example, some sites have failed to engage with us at all, and they’re now being set a deadline to take steps towards compliance, with formal enforcement action likely if they fail to meet this deadline. Failure to act on an enforcement notice is a criminal offence," he added.

Evans admitted that some may view the ICO as not being "strict enough" with its enforcement of PECR since it had yet to issue a single enforcement notice to a website operator, but he defended the watchdog's behind-the-scenes activities which he said would "ensure any action taken is credible and proportionate."

Online businesses are still unsure about rules around "implied consent", but the ICO is continue to educate on the issue, Evans said. He added that the ICO had received 380 notifications from internet users expressing concern about the use of cookies by websites. The ICO is due to publish an update on its work regarding cookies in November.

Copyright © 2012, Out-Law.com

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

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