3 July 2019

By Ali Shah, Head of Technology Policy

Since the General Data Protection Regulation (GDPR) came into effect last May, there has been a great deal of interest in how it applies to cookies and similar technologies.

Cookies can seem a complex issue. The rules on their use are in the Privacy and Electronic Communications Regulations (PECR), not the GDPR. However, some of PECR’s key concepts now come from the GDPR – such as the standard of consent.

Today, we’ve published new guidance on the use of cookies. We’ve also changed the cookie control mechanism on our website to mirror the changes in our new guidance.

Our updated guidance provides more clarity and certainty about how you can use cookies in your online service. For many of you, very little may change. But for others, more work will have to be done – and you should start taking steps to comply now.

The ICO supports innovation in the digital economy, but this should be side-by-side with privacy. Being fairer, more transparent and accountable to your users will increase their trust and confidence in you – and that benefits everyone.

In this latest myth-busting blog, I will clear up some of the uncertainty that’s developed around cookies since last year.

Myth 1: We can rely on implied consent for the use of cookies

Fact: No you can’t, because the GDPR standard of consent is much higher than under previous legislation. This means that implied consent is no longer acceptable – whether it’s for cookies, or for processing personal data. In practice, this means:

  • your users must take a clear and positive action to consent to non-essential cookies;
  • your websites and apps must tell users clearly what cookies will be set and what they do – including any third party cookies;
  • pre-ticked boxes or any equivalents, such as sliders defaulted to ‘on’, cannot be used for non-essential cookies;
  • your users must have control over any non-essential cookies; and
  • non-essential cookies must not be set on landing pages before you gain the user’s consent.

Consent is not required for cookies that are defined as ‘strictly necessary’ – those that are essential to providing the service requested by the user. Such cookies must be essential to fulfil their request. Those that are simply helpful or convenient, but not essential - or that are only essential for your own purposes - will still require consent.

Any non-essential cookies, including third party cookies used for the purposes of online advertising or web analytics, require prior consent to the GDPR standard. Our guidance explains in more detail how this applies to cookies.

Myth 2: Analytics cookies are strictly necessary so we do not need consent

Fact: While we recognise that analytics can provide you with useful information, they are not part of the functionality that the user requests when they use your online service – for example, if you didn’t have analytics running, the user could still be able to access your service. This is why analytics cookies aren’t strictly necessary and so require consent.

Myth 3: We can use a cookie wall to restrict access to our site until users consent

Fact: Using a blanket approach such as this is unlikely to represent valid consent. Statements such as ‘by continuing to use this website you are agreeing to cookies’ is not valid consent under the higher GDPR standard. However, we recognise there are some differing opinions as well as practical considerations around the use of partial cookie walls and we will be seeking further submissions and opinions on this point from interested parties.

Myth 4: We can rely on legitimate interests to set cookies, so we do not need consent

Fact: PECR always requires consent for non-essential cookies, such as those used for the purposes of marketing and advertising. Legitimate interests cannot be relied upon for these cookies.

Myth 5: The ICO wants online services to stop using cookies and similar technologies

Fact: The ICO supports innovation but that can’t always be at the expense of people’s legal rights. Cookies and similar technologies are important in ensuring the smooth running and convenience of much of the digital world. It is simply a matter of using them in a legally compliant way.

Our updated guidance is based on the basic information rights principles of fairness, transparency and accountability. Being fairer, more transparent and accountable to the people who use your website will increase their trust and confidence in you. And that benefits everyone.

Cookie compliance will be an increasing regulatory priority for the ICO in the future. However, as is the case with all our powers, any future action would be proportionate and risk-based. Start working towards compliance now - undertake a cookie audit, document your decisions, and you will have nothing to fear.

Ali Shah is the ICO’s Head of Technology Policy responsible for ensuring the ICO can respond to complex societal challenges presented by emerging technology developments.