A senior official at the Information Commissioner’s Office (ICO) has signalled that ‘implied consent’ is likely to satisfy the requirement to obtain users’ consent when using cookies, provided that users have been given clear and comprehensive information about the type of cookies being used.
The revised ePrivacy Directive – dubbed the ‘cookie law’ – requires those dropping cookies (or similar technology) to obtain users ‘informed consent’. Concerns have been expressed that ‘informed consent’ may mean ‘explicit consent’ (i.e. ticking a box) - at least in respect of cookies that have a bigger privacy impact, such as those used for online behavioural advertising.
Whilst such an approach may not strictly comply with the law, it seems that it will avoid official enforcement action.
For more information please contact Simon Morrissey, James Evans or your usual Lewis Silkin contact.