ePrivacy Directive – Legal Implications for Marketers

Stewart Room, Partner at Field Fisher & Waterhouse addresses the ePrivacy legal implications at the UK Cookie Law Compliance session in London. https://www.ensighten.com/products/data/privacy/


UK Cookie Law Compliance: Implications & Answers

Is anyone here in the Club of 50 then? Does that mean anything to anyone? Does anyone have the letter from Dave? Has anyone seen the letter from Dave Clancy, Enforcement Manager, PERC Division, ICO? No? Okay, well that’s good to know.

Dave, tell me if I’m going to stray into your area, because I don’t want to steal any of your bits. The Club of 50 is 50 letters have gone out to various organizations where the enforcement manager, interestingly enough, the for the Privacy and Electronic Communication Regulations is asking these recipients of these letters to explain their compliance profile for the new Cookie Rule. That’s interesting, isn’t it?

It tells us that we are making this step into a regulated environment. The Cookie Rule itself came into effect almost a year ago, and there has been sort of a process of regulatory forbearance, if you like. The Information Commissioner’s position, and Dave, again, tell me if I go off piece, but the Information Commissioner’s position over the past year is we’re not actively enforcing, but of course, we will deal with complaints and issues as they arise. So is that fair? That’s roughly right.

So we are getting to the end of this 12-month period, and as George will explain, when you all go onto the web over the weekend and do your online shopping and your online banking and whatever it is, your favorite website will look completely different, because it has rolled out its cookie compliant solution. That’s really good to know, because we can see that the Information Commissioner is going to move into a process of inquiry that isn’t actually triggered by complaints, but really by an assessment of the compliance profile of the organization and generally the perceived risk that would flow from its size, its scale, its reach, its customer base and things like that.

So if you have a big customer base, if you are consumer driven, if you’re touching huge parts of the economy, if you make a lot of money, then you may be in the next batch of letters if you have not received one so far. So I think that’s the beginning point to make out.

Now the title for me is privacy legal implication. But I said to Matt, who is coordinating this event that we’ll hone in on just one issue. And to me the legal issue that matters within the cookie framework is of course the consent issue. That begs a question of what does consent look like, and how do we achieve it? George, are you going to talk about some operational methods to achieve consent and some other dos there?

So I’ll try to stray away from mechanisms for obtaining consent, but the commissioner has put some stuff in here. There is regulatory guidance, and you can get some ideas there. There are a few organizations that are taking the leadership role. They’ve published their consent mechanisms already. So there are a lot of materials to get you going, but the beginning must be that we have to be ready for inquiry.

Now this is my slide deck. It’s not that hard. I think this is really all we need to know. To frame the topic, the essential point to the Cookie Rule is that there is sanctity within users’ terminal equipment. If you were to think about your mobile phone or your laptop or PC, or whatever it might be, the law has accorded that place special protection. So the terminal equipment, the things that we own and use ourselves, these are put into a special place of protection.

I think when you are shaping the cookie issue it’s remembering that maybe Joe Public isn’t that concerned about it. Maybe it’s the case that the average citizen isn’t bellyaching about it yet. And maybe “cookies” is a three-way conversation between KPMG, ICO, and a law firm, and the rest of us are oddly scratching our heads wondering what the fuss is about.

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