Out-Law Guide | 15 May 2009 | 5:55 pm | 5 min. read
Cookie laws in Europe were changed in 2009. The complete final text (96-page PDF) is in a Directive that received its final approval in the European Parliament on 24th November 2009. That Directive must be implemented in all 27 member states within 18 months.
The wording from the Directive that affects cookies is copied below.
For the context to these changes, see our editorial: Consent wil be required for cookies in Europe, OUT-LAW News, 09/11/2009
Article 5(3) of the Privacy and Electronic Commications Directive is replaced by the following:
Member States shall ensure that the storing of information, or the gaining of access to information already stored, in the terminal equipment of a subscriber or user is only allowed on condition that the subscriber or user concerned has given his or her consent, having been provided with clear and comprehensive information, in accordance with Directive 95/46/EC, inter alia about the purposes of the processing. This shall not prevent any technical storage or access for the sole purpose of carrying out the transmission of a communication over an electronic communications network, or as strictly necessary in order for the provider of an information society service explicitly requested by the subscriber or user to provide the service.
(66) Third parties may wish to store information on the equipment of a user, or gain access to information already stored, for a number of purposes, ranging from the legitimate (such as certain types of cookies) to those involving unwarranted intrusion into the private sphere (such as spyware or viruses). It is therefore of paramount importance that users be provided with clear and comprehensive information when engaging in any activity which could result in such storage or gaining of access. The methods of providing information and offering the right to refuse should be as user-friendly as possible. Exceptions to the obligation to provide information and offer the right to refuse should be limited to those situations where the technical storage or access is strictly necessary for the legitimate purpose of enabling the use of a specific service explicitly requested by the subscriber or user. Where it is technically possible and effective, in accordance with the relevant provisions of Directive 95/46/EC, the user's consent to processing may be expressed by using the appropriate settings of a browser or other application. The enforcement of these requirements should be made more effective by way of enhanced powers granted to the relevant national authorities.
Article 5(3) of the old law of 2002 provided:
Member States shall ensure that the use of electronic communications networks to store information or to gain access to information stored in the terminal equipment of a subscriber or user is only allowed on condition that the subscriber or user concerned is provided with clear and comprehensive information in accordance with Directive 95/46/EC, inter alia about the purposes of the processing, and is offered the right to refuse such processing by the data controller. This shall not prevent any technical storage or access for the sole purpose of carrying out or facilitating the transmission of a communication over an electronic communications network, or as strictly necessary in order to provide an information society service explicitly requested by the subscriber or user.
However, such devices, for instance so-called ‘cookies’, can be a legitimate and useful tool, for example, in analysing the effectiveness of website design and advertising, and in verifying the identity of users engaged in on-line transactions. Where such devices, for instance cookies, are intended for a legitimate purpose, such as to facilitate the provision of information society services, their use should be allowed on condition that users are provided with clear and precise information in accordance with Directive 95/46/EC about the purposes of cookies or similar devices so as to ensure that users are made aware of information being placed on the terminal equipment they are using. Users should have the opportunity to refuse to have a cookie or similar device stored on their terminal equipment. This is particularly important where users other than the original user have access to the terminal equipment and thereby to any data containing privacy-sensitive information stored on such equipment. Information and the right to refuse may be offered once for the use of various devices to be installed on the user’s terminal equipment during the same connection and also covering any further use that may be made of those devices during subsequent connections. The methods for giving information, offering a right to refuse or requesting consent should be made as userfriendly as possible. Access to specific website content may still be made conditional on the well-informed acceptance of a cookie or similar device, if it is used for a legitimate purpose.
Regulation 6 of the Privacy and Electronic Communications Regulations provides:
(1) Subject to paragraph (4), a person shall not use an electronic communications network to store information, or to gain access to information stored, in the terminal equipment of a subscriber or user unless the requirements of paragraph (2) are met.
(2) The requirements are that the subscriber or user of that terminal equipment -
(a) is provided with clear and comprehensive information about the purposes of the storage of, or access to, that information; and
(b) is given the opportunity to refuse the storage of or access to that information.
(3) Where an electronic communications network is used by the same person to store or access information in the terminal equipment of a subscriber or user on more than one occasion, it is sufficient for the purposes of this regulation that the requirements of paragraph (2) are met in respect of the initial use.
(4) Paragraph (1) shall not apply to the technical storage of, or access to, information -
(a) for the sole purpose of carrying out or facilitating the transmission of a communication over an electronic communications network; or
(b) where such storage or access is strictly necessary for the provision of an information society service requested by the subscriber or user.
The Information Commissioner's Office has published guidance (see pages 4-7 of the 19-page PDF) on how to interpret the UK Regulations.
The Commissioner writes: "At the very least, however, the user or subscriber should be given a clear choice as to whether or not they wish to allow a service provider to continue to store information on the terminal in question." (Emphasis from original document.)
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