Why you can’t wait a year to make cookie changes

The new law requiring consent for the use of website cookies came into force yesterday (26 May 2011). The day before, the Information Commissioner`s Office (ICO) issued guidance which some media outlets have mistakenly interpreted as meaning that website operators do not need to worry about the new law for a year. It is important that every business, charity and public sector organisation with a website is aware that this is not the case and that doing nothing for a year could put them at risk of a fine.

The ICO has now got new powers to fine up to £0.5m for certain breaches of the new cookie law (it already has powers to fine for other data protection breaches and has used those powers five times in recent months). The new guidance states that no fines specifically for cookies breaches will be issued until May 2012, however what is not being reported widely is that there will still be an enforcement mechanism in place before then. In short, if you cannot demonstrate that you are doing the following three things now and in the coming months, you will be at risk of being on the wrong end of a fine next year:

1. check what type of cookies and similar technologies your website uses and how it uses them;

2. assess how intrusive that use of cookies is; and

3. decide what solutions to obtain consent will be best in the circumstances.

If the ICO investigates your use of cookies any time between now and May 2012 (e.g. in response to a complaint) and you are not able to demonstrate that you are implementing these three things, the ICO may issue a "warning notice". That warning notice will be retained on file and taken into account once the full enforcement regime begins in May 2012 if any complaints are received after that date. So to put it simply, if you are issued with a warning notice between now and May 2012 you are at a heightened risk of being fined come May 2012.

If you are unsure as to how the new law affects you or what you need to be doing at the moment, please contact Tom Morrison on 01482 337310; email tom.morrison@rollits.com 

Posted on: 01/06/2011

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.

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