Implied consent from users is now sufficient for website cookies


Author: Alan Wetterhahn


In May last year we provided an update on the new cookie law (The New Cookie Laws – Digesting the Facts) which had been implemented in the UK following an EU Directive (see also The Cookie Diet).

The extent to which consent was required from a website user was an issue that was a concern for many website operators. At the time that the law was implemented, the UK Information Commissioner’s Office (ICO) had decided that any first time visitor to a website would have to explicitly consent for cookies to be used before that user could fully access the website.

The ICO has subsequently recognised that since the implementation of the Directive in May 2012 members of the public have become more familiar with cookies. The ICO now recognises that website operators may obtain implied consent from a user as to the use of cookies when that user first arrives on the website in question.

Website operators will, however, have to bear in mind that users still need to be alerted to the fact that cookies are being used on the site and must ensure that they have a clear and comprehensive cookie policy in place which explains what cookies will be used and how they will be used (this usually occurs by way of a dedicated “Cookie section” page).

The most commonly used method, and certainly the least “visually offensive” method, is by way of a pop-up banner that appears when a user first arrives on the website. The banner may say something like: “We use cookies on this site. By continuing to use this site, you agree to our use of cookies in this manner. Click here to change cookie settings”. When a user clicks that they are happy for the website to continue using cookies (express consent) or where a user ignores the banner and simply carries on using the website, the website operator will be able to rely on the fact that the user has seen the pop-up banner and is deemed to be aware that cookies are being used. That user is therefore deemed to be happy for the website to continue to use cookies as per the original set-up unless the user visits the cookie section and makes changes.

Website operators see this change as a very welcome approach (and so do website users for that matter) and one that is certainly the most practical in light of the lessons learnt. The change took effect from the end of January 2013.

If you would like more information on the above, or any other related matter, please contact a member of Fladgate’s Media and Technology team.

Alan Wetterhahn, Associate, Fladgate LLP (awetterhahn@fladgate.com)

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