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Published Autumn / Winter 2010

There are recent developments in relation to the law surrounding cookies to be implemented shortly from an EU Directive that providers and operators of websites need to be aware of when creating and planning websites for their clients.

Currently the law states that websites must inform users if they use cookies and allow the user to opt out. This is normally dealt with by the website’s privacy policy which outlines how information is collected, what cookies enable the operator of the website to do and how the user can deactivate cookies. It should be noted that cookies are also currently allowed if they are necessary for the provision of information society services.

The recent amendments to the EU Directive state that cookies will only be allowed if the user has either “given his or her consent, having been provided with clear and comprehensive information” or if the cookie is strictly necessary for the provision of services that have been explicitly requested by the user.

Currently the law does not require advance notice and consent to cookies and it will be interesting to see how the amendments are transposed into national legislation. It may now be that, when the Directive is enacted, website operators will have to ask users for their consent before a cookie is placed on the user’s computer.

The practical implications of this may be that, if the user has to accept each cookie, it is likely to slow down the operation of the website and the user’s experience. It will be necessary to see how the need for consent from the user is interpreted and brought into our legislation. These changes have to be implemented into law in the UK by 25 May 2011.

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