Sorry foodie fans, this is about the other cookies. The ones that live in your computer (yeah, I don’t know how either). I first wrote about this here, when there was a lot of noise about what may happen.
As last time, there seems to be a slight disconnect between the two, and when considering both, we should remember that Uncle Ed, as a Minister, trumps Christopher Graham, the Information Commissioner.
The Government’s overall position is:
It is the view of DCMS that the UK implementation of the revised e-privacy Directive,particularly with regard to Article 5(3) on cookies, is light touch, business friendly and sets a benchmark in Europe.
The wording ‘light touch’ and ‘business friendly’ is particularly relevant, as the Government has decided to be deliberately vague because basically, they are not entirely ready.
They have left scope in the amended regulations for Recital 66, which is to the effect that users can indicate consent to cookies via their browsers, to ultimately be the overall position once enhanced browsers have been developed.
That is, the Government does not consider browser settings as they stand to be enough to indicate consent, but they are working to develop a technical solution to that end.
Because the tech solution sought is not yet available, the letter goes on to state:
… enforcement action will not be taken until appropriate technical solution [sic] are available.
The letter also makes an interesting point about ‘prior consent’, which, if you recall, led a number of people to have the initial response that they would have to clutter their site with pop-ups to ensure they complied.
On this, the Government says:
… the word “prior” does not occur in Article 5(3) of the Directive, and it therefore does not appear in the UK transposition. Crucially, there is no indication in the definition as to when that consent may be given, and so it is possible that consent may be given after or during processing.
Rather than ‘prior’, the Government focus is on ‘informed’ consent, hence the request for a technical solution involving browsers – that is, they want the browser to ensure the user has to take steps to enable cookies, rather than as now, where (to my knowledge anyway, which isn’t highly technical) the user has to take steps to disable cookies.
All good? Right… the ICO press release. But first, and without calling it ‘ugly’ or ‘clunky’ or mentioning that perhaps this solution is why Government is so keen on a browser solution, I will show you how the ICO site is gaining consent:
Firstly, the press release opens with the fact that the Information Commissioner is giving website owners one year to comply with cookie law. How generous. The actuality is that the ICO cannot take enforcement proceedings until Government have sorted all this out, but you know, he is a regulator, and bless, often tries to show he has some teeth in his press releases.
While I could now go off into a whole world of snark about the ridiculousness of most of what he is saying, I won’t. The important part of that release is this:
Browser settings giving individuals more control over cookies will be an important contributor to a solution. But the necessary changes to the technology aren’t there yet. In the meantime, although there isn’t a formal transitional period in the Regulations, the government has said they don’t expect the ICO to enforce this new rule straight away.
So, as I summarised last time, right now, all you have to do is well, keep calm and carry on. Uncle Ed will let us all know when it is time to actually do something.