Out-Law News 6 min. read
18 May 2009, 8:33 am
Under plans endorsed by the European Commission, the Council of Ministers and the European Parliament, we would have a choice: stop using Google Analytics or ask visitors for permission to send that cookie when they visit. Like an over-enthusiastic greeter, the latter approach requires us to welcome even casual passers-by with a "Hi, how are you today?" and an invitation to wear a visitor's badge.
Most websites use Google Analytics (including the site of the UK's privacy chief, at ico.gov.uk) or a similar traffic analysis tool, and that is just one use that sites make of cookies. We’re all subject to this requirement for prior consent – or so it seems. The trouble is, we don't know what the law really means. Nobody does, because the proposed law is ambiguous. (See the relevant sections or full text.)
This simple approach to cookie compliance is under threat.
The new law says that cookies can be delivered to a user's computer only if that user "has given his/her consent, having been provided with clear and comprehensive information" unless it is "strictly necessary in order for the provider of an information society service explicitly requested by the subscriber or user to provide the service."
So if I'm shopping at Amazon.co.uk and I put a book in my shopping basket, Amazon can use a cookie to remember which book I want when I proceed to the checkout. That is a cookie that's essential to the service I've explicitly requested. But if Amazon wants to use a cookie for another purpose, e.g. to monitor shopping basket abandonment, it needs my consent.
This sounds bad, but a recital to the new law sounds like an escape clause. In any Directive, recitals are listed before the formal 'Articles'. They provide an introduction to the new law, sharing the lawmakers' rationale for the provisions that follow. Curiously, the cookie recital includes a suggestion that conflicts with the main Article.
The new cookie recital says: "the user's will to accept processing may be expressed by way of using the appropriate settings of a browser or other application."
Most browsers have a default setting that allows cookies. Most people never change that (and many don't know that the setting exists). So a court might reasonably question how consent can be implied from a default setting. If no question is asked, silence does not convey consent.
In fact, the expression of a "will to accept" is as close as the recital gets to mentioning consent. The recital refers twice to "the right to refuse" a cookie – yet the Article itself tells us that users must give consent, which is a different standard and a higher one.
The recital reads like an afterthought, like an apology for the over-zealous Article that follows. As such, the combination makes little sense – and websites are given a headache.
A press release about the Directive said very little about the cookie plan. All it said was: "The installation of 'cookies' on users’ computers would also be subject to consent by the user."
We contacted the European Parliament's press office for further guidance. A spokesman answered: "there has not yet been, at this stage, any clear and conclusive interpretation."
"Ultimately, whether we're talking about the existing text of 5(3) or the revised one, only courts can give an authoritative interpretation – there's a functional separation if you will between the legislator and the court system," he said. "Guidelines etc. can also be expected to be issued by the Commission, the EDPS [the European Data Protection Supervisor, who guides EU institutions on their own compliance] and national data protection authorities."
"Only the courts can decide" is a lawyer's second-favourite back-covering cliché, right after "every case turns on its own facts." It's completely unhelpful to hear it from lawmakers. How can judges and regulators know what lawmakers intended if they express themselves in riddles?
The root of the problem is that this law is probably not aimed at cookies at all. It is aimed at more sinister things being placed upon or read from website visitors' computers. In an effort to remain technology-neutral, the Article fails in its purpose. It talks of storing "information," not cookies, thereby categorising harmless cookies and password-stealing Trojans together. That is unhelpful and we have been left with ambiguous wording.
Fortunately, there is time to fix this legislative mess. The law is part of a wider telecoms reform package and MEPs took exception to another detail of that package last week, an attempt to combat file-sharing with a controversial 'three strikes' rule. They sent the whole thing back to the European Commission as a consequence.
If the Commission accepts the file-sharing changes, it will go to the Council of Ministers on 12th June. The Ministers will decide whether or not to accept the Parliament's changes and any further changes by the Commission. By then there will be a new Parliament and, from November, a new group of Commissioners. Despite the fact that all three bodies had agreed the cookie part of the law, the new assemblies may revisit and change that bit too.
To anyone seeking imminent election to the European Parliament: will you fix this please? It's not the first time that cookie plans have needed fixing: the same problem arose with the original Directive (see: European Council votes for spam opt-in and new cookie plan, OUT-LAW News, 07/12/2001), but the end result was acceptable. For companies with EU lobbyists: for the sake of your website's usability, please ask them to lobby.
Had MEPs not taken exception to the file-sharing provisions, the latest cookie proposals would have been installed in EU law this month with the stealth of the spyware they set out to block. Most of us did not know that this was going on: the English text with the cookie provisions became available only on Thursday. But our silence must not be misinterpreted as consent.
By Struan Robertson, editor of OUT-LAW.COM. This article represents Struan's views – not necessarily those of Pinsent Masons. Follow Struan's 140-character rants and ramblings at twitter.com/struan99.
The ICO has responded to our request for comment with the following statement:
“As the legislative process is ongoing there will be opportunities for all stakeholders to influence the debate.”
A spokesperson confirmed that the ICO will monitor progress of the law in Europe. "We're not going to make a call on it until the process restarts," she said. "If we were to raise a concern, it would be through the usual channels: the Article 29 Working Party, the EDPS [European Data Protection Supervisor] and BERR [Department of Business Enterprise and Regulatory Reform]."