Know Your Rights

Posted on 26th May 2011

The changes required as part of the EU Privacy and Electronic Communications Directive, which I discussed last week, come into effect today (26th May 2011). The Information Commissioner's Office (ICO) released a press release on their website stating that "Organisations and businesses that run websites aimed at UK consumers are being given 12 months to 'get their houses in order'." However, this statement only serves to confuse the issue more. Does this mean that individuals are not covered by the law (the directive implies they are) or does it mean that the leniency given to businesses does not apply to individuals, and thus the full weight of the law and fines will be imposed immediately. The press release also seems to imply that the new law only applies to businesses providing ecommerce websites, so does that mean other businesses and organisations are exempt?

Or, does it mean that those implementing the law and writing press releases are so eager to get something out, they have forgotten that their peace offering to (some?) businesses still leaves a gaping hole in their policy of adhering to the original directive.

And it gets worse. Reading an article on eWeek, George Thompson, information security director at KPMG, is quoted as saying "The new law inadvertently makes the collection of consent - yet another set of sensitive, customer data - compulsory. Companies need to tighten up their data management policies and make absolutely sure that every new data composition is covered." Which leads me to believe that you can now be fined if you don't ask the user to accept cookies, and can be fined if you don't record details of those who said they don't want cookies! Then I assume you can then be fined again if that data isn't securely stored away to adhere to the Data Protection Act.

Did no-one really sit down and think of the implications of all this?

The Register reports that only 2 countries within the EU have notified the Commision that all the rulings have been passed into law, with the other Member States possibly facing infringement proceedings. With such a weight of resistence, wouldn't it be more wise to review the directive properly so all Member States understand and agree to all the implications?

It's not all doom and gloom though. Another article by Brian Clifton on Measuring Success, looks at Google Analytics, and concludes that "Google Analytics uses 1st party cookies to anonymously and in aggregate report on visits to your website. This is very much at the opposite end of the spectrum to who this law is targeting. For Google Analytics users, complying with the ToS (and not using the other techniques described above), there is no great issue here - you already respect your visitors privacy...!" (also read Brian's car counting analogy in comment 3, as well as other comments). In fact Google's own site about Google Analytics supports Brian's conclusion too.

The BBC have posted on their BBC Internet Blog, explaining how they are going to be changing to comply with the law. To begin with they have updated their list of cookies used across all their services. Interestingly they list Google Analytics as 3rd-party cookies, even though they are not, but I think that comes from the misunderstanding many of us had about GA cookies.

Although the ICO website has tried to lead by example, with a form at the top of their pages requesting you accept cookies, this doesn't suit all websites. This method of capturing consent works fine for those generating dynamic websites from self controlled applications, such as ICO's own ASP.NET application, but what about static websites? What about off-the-shelf packages that haven't any support for this sort of requirement?

On the other side of the coin, the ICO themselves have discovered that a cookie used to maintain session state is required by their own application. Providing these are anonymous, the directive would seem to imply that these cookies are exempt, as being "strictly necessary" for the runing of the site. Then again, if they did contain identifying data, but the application wouldn't work without it, is that still "strictly necessary"? A first step for most website owners will be to audit their use of cookies, as the BBC have done, but I wonder how many will view them all as strictly necessary?

It generally means this is going to be an ongoing headache for quite sometime, with ever more questions than answers. As some have noted, it is going to take a legal test case before we truly know what is and isn't acceptable. Here's hoping it goes before a judge well versed with how the internet works, and that common sense prevails.

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