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Almost a year ago today, new rules came into force concerning
the use of cookies on websites by website operators. In the UK, the
Information Commissioner's Office gave website operators a one
year grace period from enforcement action, during which website
operators were expected to audit and revise the use of cookies on
their websites, to change the functionality of their websites and
to amend their privacy policies to ensure that they were only
setting cookies in circumstances which complied with the new
regulations.
The grace period ends on 26 May 2012. After this date, all
website operators will have to comply with the new rules and the
Information Commissioner's stay on taking enforcement action
against those website operators that fail to comply with the new
regulations will be lifted.
Penalties for non-compliance
The Information Commissioner can penalise website operators that
fail to comply with the new regulations by:
Issuing fines: requiring the website operator
to pay a penalty of an amount decided by the Information
Commissioner, up to a maximum of Ł500,000.
Requiring undertakings to be given: obliging a
website operator to undertake certain actions in the future to
improve compliance.
Issuing enforcement notices: compelling a
website operator to take actions specified by the Information
Commissioner to bring about compliance with the new rules. Failing
to comply with an enforcement notice can be a criminal
offence.
Guidance released by the Information Commissioner in December
2011 explained that if full compliance has not been achieved by a
website operator by 26 May 2012, that website operator will, if
approached by the Information Commissioner, need to provide a
detailed explanation as to why compliance has not been achieved by
the deadline and will need to provide a clear timescale and a
detailed action plan, setting out how and when compliance is
expected to be achieved by that website operator.
The new rules
The rules on the use of cookies by website operators changed on
26 May 2011 as a result of an amendment to the Privacy and
Electronic Communications (EC Directive) Regulations 2003 and a
change to the E-Privacy Directive 2000/58/EC.
The new regulations require website operators to get
"opt-in" consent from website users before certain types
of cookies or similar technologies can be set. Website operators
must also now provide detailed information on the cookies they
intend to set and the ways in which they are used so that website
users can choose whether to accept them or not and so that the
website operator can demonstrate that it has obtained valid consent
from those website users.
The new "opt-in" regime is in contrast to previous
practice, where website operators commonly just mentioned in their
privacy policies that they use cookies and website users were left
to "opt-out" by changing their browser settings to block
cookies if they did not want cookies to be set on their
devices.
Mayer Brown is a global legal services provider
comprising legal practices that are separate entities (the
"Mayer Brown Practices"). The Mayer Brown Practices are:
Mayer Brown LLP and Mayer Brown Europe – Brussels LLP,
both limited liability partnerships established in Illinois USA;
Mayer Brown International LLP, a limited liability partnership
incorporated in England and Wales (authorized and regulated by the
Solicitors Regulation Authority and registered in England and Wales
number OC 303359); Mayer Brown, a SELAS established in France;
Mayer Brown JSM, a Hong Kong partnership and its associated
entities in Asia; and Tauil & Chequer Advogados, a Brazilian
law partnership with which Mayer Brown is associated. "Mayer
Brown" and the Mayer Brown logo are the trademarks of the
Mayer Brown Practices in their respective
jurisdictions.
This
Mayer Brown article provides information and comments on legal
issues and developments of interest. The foregoing is not a
comprehensive treatment of the subject matter covered and is not
intended to provide legal advice. Readers should seek specific
legal advice before taking any action with respect to the matters
discussed herein.
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