A lot of our clients have been contacting us for advice on this thorny topic. And I’ve got to say – despite reading almost every authoritative article and document on the subject that I can find, it’s definitely a tricky one. Cookie Law – It’s a perfect storm - where the complexity of web technology, well-intentioned efforts to protect individual ‘privacy’, business interests, confusion and ignorance have all collided. Not a pretty sight really.
So what we have tried to do in the following piece is make sense of it all for our clients and at the end to provide some practical advice.
You could argue that the confusion we are faced with was inevitable when the words ‘privacy’ and ‘cookies’ came together. After all, surely online privacy is about not having others construct or even steal your details or identity? To our knowledge, mainstream cookies have not normally played a part in that kind of activity. Generally (and this would include all of our clients) cookies can only impact the way websites behave for you, or impact the way owners build them. We don’t see either of these things as negative or impacting ‘privacy’. However, where we have some sympathy – and research shows that consumers do think there is an issue – is ‘cyber-stalking’ or as someone said in the Econsultancy document: ‘. . . no-one is going to choose to opt-in to have a pair of trousers (ad for) chasing them around the Internet’. But perhaps they should in that case be offered the opportunity?
The legislation actually came into effect a year ago. However, site owners have been given a year to consider what to do about it. It is a measure of the confusion that even many big brands are probably only now beginning to consider what their strategy is.
What do we know others are doing about it?
Unfortunately for typical SMEs and most B2B site owners, there is no sign of a single approach developing among the bigger brands that you might expect to give a lead. There appears to be a complete range of reactions in the industry ranging from at one end quite a few (generally anonymous) site owners saying that they will do nothing, through to BT at the other end of the spectrum who have provided a sort of app on their site that allows users to visually select the cookies they will accept and change their setting accordingly. However, they probably spent as much developing that as some of our clients have spent on their website.
What the ICO are saying and how they will enforce the Directive in the UK
(First of all: what is the ICO? It is a quango – the Information Commission Office - set up to uphold data privacy. http://www.ico.gov.uk/
They have the power to impose penalties of up to £500,000 for serious breaches of the Data Protection Act 1998)
That’s the scary bit. Now the good bit: They aren’t out to get you. Firstly their guidance re: cookies is as follows:
Conduct an audit of cookie usage on your site
Assess the relative intrusiveness of each of those cookies
Choose an appropriate consent mechanism based on how intrusive they are
Secondly, they have taken up a friendly stance of encouragement rather than vigorous pursuit of offenders in their own words:
“We’re here to educate and promote good practice”
“. . .we intend to enforce the law proportionately”
They have also stated that they will only act on complaints, that they would probably advise an organisation before prosecuting it,and that you’re unlikely to get into trouble if the only cookies on your site are analytical tracking ones.
Your options – what should you do?
Although we have some national brands in our client list, they haven’t come to us for advice, so if you have read this far you are probably an SME and most likely a B2B one, so this advice is intended for you.
Firstly, if you haven’t, try to audit your site to determine what cookies it is serving (Give us a call if you would like us to do this for you).
We think that (in simple terms) there are four types of cookie that could exist on a site:
1. A functional cookie – that enhances the usage or individual experience you have on a website (example – remembers what you put in a website shopping basket)
2. Google Analytics cookie – That allows you to track aggregate usage of your website. Innocent because Google prevents you from tracking individual site visits or data
3. Re-marketing cookie – Less innocent arguably. Tells user browsers that you have been on certain websites and prompts other websites to serve up specific ads because of it
4. Advanced Analytics cookie – Allows site owners to identify individual visitors through individual tracking and cross-comparing data
Assuming that your site only has cookies 1. and 2. above, you really shouldn’t have too much to worry about. However, if cookies 3 and 4 exist on your site then we think you may want to be explicit about that.
'Take it or leave it' - what you should say to your visitors
by Chris Bullick
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