New Cookie Regulation in the EU

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Re: New Cookie Regulation in the EU

Post by jbudd » Fri May 27, 2011 9:16 am

The Information Commissioner's Office have (I think) implicitly conceded that they cannot meet the requirements of the law.
http://www.ico.gov.uk/news/current_topi ... _pecr.aspx

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Re: New Cookie Regulation in the EU

Post by abernyte » Fri May 27, 2011 10:38 am

They have indeed but unworkable or not it is EU Law and has to be complied with.
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Re: New Cookie Regulation in the EU

Post by Webdongle » Fri May 27, 2011 12:40 pm

abernyte wrote:....unworkable or not it is EU Law and has to be complied with.
Not strictly true, there have been many cases in the past where a law has been passed and then not followed up. Tachograph laws are a good example:

Some time ago the wording was changed from 'Goods vehicles' to 'goods carrying vehicles'. This was to prevent Agricultural vehicles hitching up articulated trailers and the drivers driving any hour they wished. But it also created Landrovers/Rangerovers and other 4 wheel drives that (no Tachographs would fit) which carried any work related goods.[Even if it was in the back of the vehicle and not in a Trailer]. There were a few 'test case' that ended in failed prosecution and now the law is not enforced on certain vehicles.


Hate to say I told you so
The government has formed a working group with browser manufacturers to see if a browser-based solution to the issue can be found...... A spokesman for the Department for Culture, Media and Sport admitted that there may be "other technical solutions" but that the browser solution was the only one it was currently pursuing.
http://www.bbc.co.uk/news/technology-13541250 :laugh:
http://www.weblinksonline.co.uk/
https://www.weblinksonline.co.uk/updating-joomla.html
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Re: New Cookie Regulation in the EU

Post by abernyte » Fri May 27, 2011 2:00 pm

And do you think that any browser manufacturer will produce an edition that blocks all cookies as default? Chrome? IE 9
The solution that they are pursuing is the MS twaddle of a whitelist al la IE 9 and 10s Track Protection where company promise not to track you (we won't honestly...well only to make your web experience better) to get on the list. Farce.

The VOSA list of tachograph exemptions are the only ones to which the law does not apply. The VOSA derogation was only for the fitting of the tachograph to 4X4s. The driver still has to comply with the law on his hours via paper record.
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Re: New Cookie Regulation in the EU

Post by Webdongle » Fri May 27, 2011 2:49 pm

abernyte wrote:And do you think that any browser manufacturer will produce an edition that blocks all cookies as default? Chrome? IE 9
....
Just as impractical as websites doing it. But (IMHO) there is a strong possibility that the new law will turn focus on to how Browsers handle cookies rather than the websites themselves.

abernyte wrote:..... The VOSA derogation was only for the fitting of the tachograph to 4X4s. The driver still has to comply with the law on his hours via paper record.
Not accurate, it was worded 'Goods carrying vehicles'. It was then amened to include vehicles with trailers plated to carry greater than 3.5 tonnes. But that is also controversial because a vehicle with an unplated trailer is classed as the trailer capable of carrying the maximum the vehicle could tow.

There are may other instances of other Tacho laws failing in test cases. But it is just an example of how test cases have made a mockery of a law and thus rendered it unenforceable.

Another example is of the law being mocked is the so called 'Court Gagging Order'. TV and news Papers could not say the persons name. Even though the UK media could report that Scottish media could name the player. Yet the name was revealed on Twitter and there was Legal speculation as to if twitter could be taken to court. Eventually an MP used 'Parliamentary Privilege' to name the player in the House of commons. Then the UK media could mention the name even though the court refused to lift the 'Gagging Order'.

There are many other examples where the law has said one thing but 'test cases' have decided the opposite. Court cases about Bank charges being another.

This law about cookies will be reviewed, re-worded and the focus of responsibility changed several times before it is enforced. Then many years of the Legal profession lining their pockets before it gets ignored. Or at least policed in a way that is practical, with the ICO left with little or no teeth to enforce their recommendations on any site.
http://www.weblinksonline.co.uk/
https://www.weblinksonline.co.uk/updating-joomla.html
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Re: New Cookie Regulation in the EU

Post by abernyte » Fri May 27, 2011 4:20 pm

I don't disagree. It is a badly worded law which will eventually fall into neglected contempt. That does not mean that the purpose that the regulation espoused was wrong, just its application.
I doubt that we will ever see a browser that complies with this as it stands now. The UK Government along with the other 26 voted this through in 2009 and have signalled their partial compliance to the Commission along with the other 5 in the same position. 2 have have signalled complete compliance and the rest have ignored it so far.
Don't be too comfortable with test cases in the English courts. They are largely irrelevant in this. It is the EU directive that counts and Westminster is subordinate to that.
The ICO is the most toothless, useless organisation on the planet. They have failed miserably at any test of upholding Data Protection law and the rights of the individual. I have no hope of them doing so now.
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Re: New Cookie Regulation in the EU

Post by Webdongle » Fri May 27, 2011 4:39 pm

abernyte wrote:...
Don't be too comfortable with test cases in the English courts. They are largely irrelevant in this. It is the EU directive that counts and Westminster is subordinate to that.
...
But there have been many test cases in the European court as well. Most of the time I wonder how much is to enable the 'elite' to recylce public funds into their own pocket.
abernyte wrote:...
...
The ICO is the most toothless, useless organisation on the planet. They have failed miserably at any test of upholding Data Protection law and the rights of the individual. I have no hope of them doing so now.
Yes definately.

Have sent them an email along with an image of their two cookies.
How are others expected to meet the legal requirements when your site does not ?

I have not agreed to any cookies from your site, yet it has placed two on my computer. But the message on your site says one cookie is essential for the running of the site.

Why has a non-essential cookie been placed on my computer by your site.
So far only received an auto response. Wonder how they would cope if everyone did similar :laugh:
http://www.weblinksonline.co.uk/
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Re: New Cookie Regulation in the EU

Post by veryprouddad » Wed Jun 29, 2011 11:58 am

All,

There is clearly a lot of opinion on the quality of the law, and while I am in the camp regarding it as being flawed, it does remain as the law.

As such, the Joomla community needs urgently to work out how to allow their websites to completely block all cookie production. This should definitely apply to versions 1.5 and 1.6, even if 1.0 is probably too old to be considered.

The issue at stake is that there are a vast number of websites using one technology, all of which are non-compliant under European Law. Like it or not, we need to fix this in a definitive manner, and to do this with considerable urgency.

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Re: New Cookie Regulation in the EU

Post by Webdongle » Wed Jun 29, 2011 4:40 pm

veryprouddad wrote:....
There is clearly a lot of opinion on the quality of the law, and while I am in the camp regarding it as being flawed, it does remain as the law.
...
Yes but that is not the issue, the issue is the way various authorities will interpret the law. And as for the letter of the law that may well be tested in Test cases as to the interpretation.

"...The only exception to this rule is if what you are doing is ‘strictly necessary’ for a service requested by the user..."
http://www.ico.gov.uk/news/current_topi ... tions.ashx
Reading their guidance clearly shows (IMHO) that they are saying they will only have time to chase sites that either ... deliberately make no effort or use cookies to gain private info for advertising/canvassing purposes. And (again IMHO) will not chase after websites that make some kind of effort to notify about cookies.

"The Commissioner has discretion over if, how and when he uses his enforcement powers. He does though have to act within the limits of reasonableness and can be subject to judicial review if he does not. He also has to recognise that the Regulations have been drawn up by the Government, laid before Parliament and directly implement an EU Directive. They are the law and there is an expectation that broadly, he will enforce them." on http://www.ico.gov.uk/~/media/documents ... ons_v1.pdf appears to support that hypothesis.

veryprouddad wrote:...
The issue at stake is that there are a vast number of websites using one technology, all of which are non-compliant under European Law. ...
Including the ICO themselves who put a cookie from their cms onto the visitors Computer.
"We have recently become aware of this cookie. We are working with the supplier of our content management system to remove it or, if it can’t be removed, to find another solution."
http://www.ico.gov.uk/Global/privacy_statement.aspx

veryprouddad wrote:...
The issue at stake is that there are a vast number of websites using one technology, all of which are non-compliant under European Law. Like it or not, we need to fix this in a definitive manner, and to do this with considerable urgency.
IMHO
Joomla is not 'non-compliant under European Law' because the cookies it places on the computer come under the 'essencial use' or at least the way ICO are interpreting that phrase.
and
That the onus of responsibility is on the on the site owner to have some sort of Privacy notice and to control other cookies used by 3rd party extensions they install.
http://www.weblinksonline.co.uk/
https://www.weblinksonline.co.uk/updating-joomla.html
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Re: New Cookie Regulation in the EU

Post by abernyte » Wed Jun 29, 2011 6:27 pm

Joomla is not 'non-compliant under European Law' because the cookies it places on the computer come under the 'essencial use' or at least the way ICO are interpreting that phrase.
I can't entirely agree with that statement as we cannot, in law, separate "essential for a service" from "explicitly requested by the user" to make it convenient. So the session cookie still needs consent.

I do wholly agree with the totality of the argument that the Joomla session cookie will be well down the list of those to be looked at, even should someone raise a complaint, providing you have given a suitable warning and have a clear privacy statement.

Can't say the same about Google Ad-sense and Analytic's cookies though.
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Re: New Cookie Regulation in the EU

Post by Webdongle » Wed Jun 29, 2011 6:40 pm

abernyte wrote:...
I can't entirely agree with that statement as we cannot, in law, separate "essential for a service" from "explicitly requested by the user" to make it convenient. So the session cookie still needs consent...
That is a mute point but it can be argued that the session cookie is "essential for a service" because it is part of site security and therefore essential.

abernyte wrote:Can't say the same about Google Ad-sense and Analytic's cookies though
Have been considering setting the 'Statcounter' module Registered. But the Statcounter cookies are not placed in the cookies folder for the site. They are placed in a folder for Statcounter.com
Last edited by Webdongle on Wed Jun 29, 2011 6:51 pm, edited 2 times in total.
http://www.weblinksonline.co.uk/
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Re: New Cookie Regulation in the EU

Post by abernyte » Wed Jun 29, 2011 7:25 pm

I agree that the session cookie may be essential to the site operation but it is still being dropped prior to the explicit consent. The two go together like Apple and fanbois!
Article 66 actually says;
Exceptions to the obligation to provide information and offer the right to refuse should be limited to those situations where the technical storage or access is strictly necessary for the legitimate purpose of enabling the use of a specific service explicitly requested by the subscriber or
user
http://register.consilium.europa.eu/pdf ... 4.en09.pdf

The UK ICO has interpreted this as a shopping cart.
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Re: New Cookie Regulation in the EU

Post by nobby2010 » Wed Jun 29, 2011 8:40 pm

if anyone wants a good script to help with the cookies permission i have found a great site after searching for days - http://www.cookiesdirective.com/ the owner of this site has developed a message for allowing cookies from sites like google analytics etc. give it a try. It should be a start in complying with the EU Directive.

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Re: New Cookie Regulation in the EU

Post by Webdongle » Wed Jun 29, 2011 9:17 pm

abernyte wrote:...
The UK ICO has interpreted this as a shopping cart.
Yes but for 4b of
the purposes of this regulation that the requirements of paragraph (2) are met in respect of the initial use.
“6,(3A) For the purposes of paragraph (2), consent may be signified by a subscriber who amends or sets controls on the internet browser which the subscriber uses or by using another application or programme to signify consent.
6,(4) Paragraph (1) shall not apply to the technical storage of, or access to, information--
(a) for the sole purpose of carrying out the transmission of a communication over an electronic communications network; or
(b) where such storage or access is strictly necessary for the provision of an information society service requested by the subscriber or user.
http://www.ico.gov.uk/~/media/documents ... ations.pdf

A session cookie would surely come under 3a


The confusion here is because Section 6 paragraph 1 refers to paragraphs 4 & 2. Then Paragraph 3 refers to paragraph 2 with paragraph 4 referring to paragraph 1.

Reading backwards and forwards through the rhetoric (and what could be described as double negatives) there is an IF ELSE loop.

IF cookie 6,(1)
Give information 6,(2a)
Then get permission 6,(2b)
END IF
IF cookie does not store or retrieve information about users personal details .OR. computer settings 6,(3)
THEN
Give information 6,(2a)
They have agreed to accept the cookie because of their Browser settings 6,(3a)
ELSE
IF cookie stores or retrieve information about users personal details .OR. computer settings
6,(4a) & 6,(4b)
Give information 6,(2a)
Then get permission 6,(2b)
Get the user to agree before placing the cookie by selecting that option
END IF

That's how it looks to me, thus session cookies come under 6,(3a)

What also makes http://www.ico.gov.uk/~/media/documents ... ations.pdf difficult to interpret is because the paragraphs of section 6 are split with a page break.
http://www.weblinksonline.co.uk/
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Re: New Cookie Regulation in the EU

Post by abernyte » Thu Jun 30, 2011 9:06 am

Great logic! Love it.

Unfortunately the UK ICO has echoed the EU commission and has already stated that:
"At present, most browser settings are not sophisticated enough to allow you to assume that the user has given their consent to allow your website to set a cookie," the guidance says, noting users may access sites via apps instead of browsers, and may not have the most recent versions with the latest cookie controls built in.
"So, for now we are advising organisations which use cookies or other means of storing information on a user’s equipment that they have to gain consent some other way."
http://www.ico.gov.uk/~/media/documents ... ations.pdf

So the short legal reply is: no, sessions cookies are not exempt.
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Re: New Cookie Regulation in the EU

Post by pet11anr » Thu Jun 30, 2011 12:45 pm

interesting article Image

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Re: New Cookie Regulation in the EU

Post by Webdongle » Thu Jun 30, 2011 3:41 pm

abernyte wrote:...
Unfortunately the UK ICO has echoed the EU commission and has already stated that:
"At present, most browser settings are not sophisticated enough to allow you to assume that the user has given their consent to allow your website to set a cookie," the guidance says, noting users may access sites via apps instead of browsers, and may not have the most recent versions with the latest cookie controls built in.
"So, for now we are advising organisations which use cookies or other means of storing information on a user’s equipment that they have to gain consent some other way."
http://www.ico.gov.uk/~/media/documents ... ations.pdf

So the short legal reply is: no, sessions cookies are not exempt.
But you miss the point. That quote clearly does not apply to cookies that do not gather either personal details or Browser details."6“(3A) For the purposes of paragraph (2), consent may be signified by a subscriber who amends or sets controls on the internet browser which the subscriber uses or by using another application or programme to signify consent"

The quote you point to clearly only applies to cookies designed to store or get personal(or Browser) details. When those type of details are requested or stored then the user must tick a box on a consent form. But the exception to that is when making payment for goods.

It is crystal clear (when studied) that they are making a distinction between cookies to run the site and cookies designed to collect material for marketing purposes. Granted, they have a convoluted way of making that distinction, but they do distinguish between the two.

Interestingly they class getting browser/OS details with the marketing type cookies. In that they require a 'tick box form' type consent. "The exception would not apply, for example, just because you have decided that your website is more attractive if you remember users’ preferences or if you decide to use a cookie to collect statistical information about the use of your website."

They are saying 'the letter of the law may be exact but we are exercising common sense in our interpretation to it. Because the law is designed to prevent hidden cookies that collect data for Profiling and selling on.'
http://www.weblinksonline.co.uk/
https://www.weblinksonline.co.uk/updating-joomla.html
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Re: New Cookie Regulation in the EU

Post by abernyte » Thu Jun 30, 2011 5:16 pm

Careful now..that is a leap too far.

The legislation, either the Directive or the UK Regulations (PECR 2003 and 2011) do not at any time differentiate between session, first or third party cookies or for that matter Flash objects or Web Bugs. We cannot then ascribe any characteristics such as:
clearly only applies to cookies designed to store or get personal(or Browser) details.
to a particular cookie.

The ICO briefing note where you get the paragraph numbers from the Privacy and Electronic
Communications Regulations 2003 (PECR) shows the text of the 2003 Regs and the amendment required by the 2011 Regs.

Your logic worked under the 2003 interpretation but is now rendered irrelevant by PECR 2011 - 6(2)(b) - "has given his or her consent."

6 (3)(a) is similarly irrelevant by the interpretation placed on the browser setting not being an indication of the users explicit consent. Implicit yes...explicit no. As long as the browser default setting is accept cookies (and all are) then there can be no assumption of explicit consent.

All cookies require to be explicitly accepted before delivery unless for a service explicitly requested by the user, in which case there has been ample opportunity to get the consent.
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Re: New Cookie Regulation in the EU

Post by Webdongle » Thu Jun 30, 2011 5:39 pm

abernyte wrote:Careful now..that is a leap too far.
...
Is it really ?

Have a look at all the loops in their page if the cookies does xyz but except paragraph #. You go to paragraph # and it makes another statement if paragraph ##.

Weed all those loops out and session cookies are excluded from
Essential cookies
Cookies that store or collect personal information
Cookies to enhance the Browser display

So by definition as session cookies do not fall in any of those categories they therefore fall in in the 'accepted because of Browser settings'

It does loop about a little with waffle but that is what it is (in effect saying).

Essential cookies are not included
Non essential cookies are cookies that ... except ... etc ....

But they do say that they are working with their 'supplier of our content management system' to work out how to remove the session cookie that their site creates :laugh:

As we know that is unlikely they will find a solution then ... well your guess is as good as mine.
http://www.weblinksonline.co.uk/
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Re: New Cookie Regulation in the EU

Post by Tonie » Fri Jul 01, 2011 7:19 am

Another discussion here, closing this one: http://forum.joomla.org/viewtopic.php?f=428&t=549868

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Re: New Cookie Regulation in the EU

Post by infocom » Mon May 21, 2012 7:21 pm

Thanks Sputnikweb, I've spent ages trying to find this out and code myself but couldn't do it. This is exactly what we need for the EU Directive because my sites do not need cookies or sessions unless for Admin.

But what is the purpose of commenting out session_regenerat_id, because it still works if you don't comment it out.

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Re: New Cookie Regulation in the EU

Post by sputnikweb » Mon Apr 15, 2013 1:00 pm

:D

It's been interesting returning to this thread some months later and after watching how the whole cookie policy has unfolded. Suffice to say, it's nonense and has all but been abandoned.

I haven't recently "hard refreshed" by brain cache on the ICO website but last time I looked they were talking about "implied content" and not "explicit consent" as once they were. Basically, you (as the user), know websites use cookies so if you continue to use any particular website you imply that you give consent to that website to place cookies. You no longer need to agree in advance (in reality, the only time you seemed to need to agree in advance was before the law actually was enforced!).

Currently, on the websites we produce, we have taken the cookie info out of the disclaimer and put it on its own dedicated "Cookie Policy" page with its own link in the obligatory legals menu. The page lists and explains the cookies, what they are for, and whether they are 1st or 3rd party. We like to add a subtle "This site uses cookies" notice somewhere at the top but if the client complains we don't bother...

... none of our clients have been arrested yet :)

How do you now deal with the ruling, @infocom?

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Re: New Cookie Regulation in the EU

Post by infocom » Mon Apr 15, 2013 3:07 pm

@ sputnikweb yes we do more or less the same. As cookie law followers will know the ICo changed their minds the DAY BEFORE the required consent was required! So implied consent is OK BUT with a clear link to tht ecookie policy showing what cookies are used and how to block cookies. So we no longer need to modify Joomla to stop cookies, we just need to add a pop up to the site with a link to a dedicated cookie page. This is what we do http://www.[ ** removed ** ].co.uk/tech-blog/javascript-notification-box-using-cookies-to-remember-close. So just uses Javascript to make a pop up, and if a user closes this box "drop a cookie" ( ha ha) to remember their choice so it wont pop up again.
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Re: New Cookie Regulation in the EU

Post by Webdongle » Sat Nov 02, 2013 2:18 am

The saga continues ...

Information was requested under the Freedom of information act. Notice the ICO give information about:
  • The number of complaints made
  • The number of sites that were complained about more than once
  • The number of sites the ICO have followed up on
But the ICO have not said the number of sites complained about ... thus avoiding showing the % of follow ups they have made ;D
https://www.whatdotheyknow.com/request/ ... statistics

Also http://www.itpro.co.uk/642727/web-softw ... cookie-law and http://nocookielaw.com/ may be interesting to look at ?
http://www.weblinksonline.co.uk/
https://www.weblinksonline.co.uk/updating-joomla.html
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Re: New Cookie Regulation in the EU

Post by abernyte » Wed Nov 06, 2013 6:17 pm

And don't think that any of this has gone away. The proposals agreed at the European Council in Brussels last month which must come into force in 2015, will make it law that while there will likely continue to be alternatives to relying on an individual’s consent to process their personal information, it’s clear that if your organisation is going to rely on consent then it will need to be ‘explicit’ to be valid.
http://www.consilium.europa.eu/uedocs/c ... 139197.pdf *** 20 odd page pdf and pour a stiff drink before reading.***
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Re: New Cookie Regulation in the EU

Post by zeno » Mon Dec 30, 2013 11:32 am

Just when you thought this had all died down...

EU cookie law: new EU guidance on obtaining consent

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Re: New Cookie Regulation in the EU

Post by mandville » Mon Dec 30, 2013 1:15 pm

to sum up i think that the operative word is in bold. c&p from authors summary article for speed!
Many observers will be disappointed by the 2013 Guidance, as it is looks toward a much more granular approach to cookies over broad practical, industry-friendly measures.

And are ever more granular controls what the public wants? Does anyone really want to click actively through an entry page on every European website they visit? The ICO's annual report shows that cookies are not a big issue for most consumers. Last year in the UK there were 685 complaints about cookies compared with 155,425 complaints about telesales and spam text messages.Of course, this might just stem from ignorance of the issues. In its survey of over 2,000 Internet users at the end of last year, the UK's Internet Advertising Bureau found that only 37% could correctly identify the basic definition of a cookie from a multiple-choice question. Around half, however, wanted "to know more about cookies and online privacy".

Persisting with the "tick-box" approach to accepting cookies is likely to move us further away from achieving consensus across all Member States. Moreover, by continuing to demand the heavy regulation of cookies, there is a real risk that consumers' privacy will be harmed instead. Demonising cookies could drive advertisers and websites in need of advertising revenue into the hands of more invasive techniques like "digital fingerprinting", which is the collection of benign browser characteristics to track users across websites without having to store any data files on users' machines.
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Re: New Cookie Regulation in the EU

Post by abernyte » Mon Dec 30, 2013 2:49 pm

An interesting view but ultimately one which only serves to demonstrate just how out of step the UK ICO is with the view from the EU Article 29 Working Party.
The ICO caved in February 2013 (under duress from Whitehall and their Google/Microsoft partners) and moved to implied consent. November 2013 and the Article 29 Working Party re-issues guidance (EU speak for "read my lips") to reiterate that consent must be a "positive action" or other "active behaviour" or by any other active behaviour from which a website operator can unambiguously conclude it means specific and informed consent.
The tired old line about improved cookie control being bad for consumer privacy is straight from the Google submission to the current ICO consultation.

The EU will continue to legislate and the UK will continue to dither at the behest of "big data" and another year will pass with the consumer still getting stuffed.
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Re: New Cookie Regulation in the EU

Post by Webdongle » Mon Dec 30, 2013 4:04 pm

http://www.ico.org.uk/enforcement/action/cookies

bottom of the page but they don't say what the 'significant action' that they took was. and they only visited 200 sites ?
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Re: New Cookie Regulation in the EU

Post by wdarlington » Fri Jan 10, 2014 11:39 am

Very Interesting topic, I need be concerned.. just a little!
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