I know! In the UK we call these ‘biscuits.

Before we talk about the EU law on using cookies, let’s just clarify exactly what we’re talking.

What is a Cookie?

Well, it’s not something you’d want to dunk in your coffee! It is simply a small text file used by websites to track a variety of activities within their website. Cookies are mostly used for monitoring traffic to websites, but can be used for a variety of things, and in some cases can store important information about website visitors.

What is the Cookie Law?

Officially a part of the EU Directive on privacy and electronic communications, the “cookie law” is the law that says a website may not access or store information (cookies) about a visitor to the site without their consent. This excludes information that is considered to be ‘strictly necessary for the delivery of a service requested by the user’ – which includes things like ‘add to basket’ or ‘proceed to checkout’ for online shopping, where information needs to be carried to another page.

So, as a website owner what you need to know is that you need to have consent from visitors to your site in order to continue using “cookie” for analytics.

At the moment indications from the Information Commissioner’s Office suggest that a path of “education instead of enforcement” is currently being followed, although it is worth remembering that non-compliance is a criminal offence.

The full directive can be found here: EUR-Lex – directive on privacy and electronic communications and the ICO’s own guide on the use of cookies includes a section on enforcement.

What to do about it?

All websites must obtain consent from their visitors to continue using cookies and we see   three possible options to complying with the “cookie law”.  All options recommend a prominent pop-up window on the page of a first –time visitor.

  • Option1 – The pop-up window alerts visitors to the use of cookies, and provides an option for them to refuse which then takes them straight out of the website.
  • Option2 – Again the pop-up alert. But this time a refusal is directed to a page that explains how to disable cookies on the user’s computer.
  • Option 3 – This option will allow the visitors who refuse cookies to continue using the website, but code within the website will be set not to gather any information about the user.

All three of these options use “implied consent” which is usually sufficient where the use of cookies is required for little more than analytics. However the  ICO guidelines are quite clear that: “While explicit consent might allow for regulatory certainty and might be the most appropriate way to comply in some circumstances this does not mean that implied consent cannot be compliant.” If a website is collecting personal data it is probably advisable to obtain specific consent which should include information relating to the nature of the cookies being used.

To further confuse matters “implied consent” cannot be used as a “euphemism for ‘doing nothing’.” It is therefore best to have a button or tick box forcing the user to take some action that indicates that they are aware that cookies are being used.

How to do it?

How your website was created will dictate how you go about adding a pop-up. There are a number of plug-ins available for WordPress, but unless you are confident with the inner workings of your website it is probably best to get your webmaster to do it for you.

We hope this helps you understand the implications of this law and if it is not already installed on your website we recommend doing it quite soon.

What does it mean for small businesses?

It is not optional – if you have a website it is a legal requirement to request consent to use cookies. This has been law since 26 May 2012, and if you haven’ already done it, you need to do so as soon as possible.

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Ian Smith
Dr Ian Smith

32 years of marketing experience to help small businesses understand the world of website marketing.