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In June 2012, European data protection authorities (as part of the Article 29 Working Party) adopted an opinion which clarifies that some cookie uses might be exempt from the requirement to gain consent:
Regulation 6 covers the use of electronic communications networks to store information, eg using cookies, or gain access to information stored in the terminal equipment of a subscriber or user.
Although devices which process personal data give rise to greater privacy and security implications than those which process data from which the individual cannot be identified, the Regulations apply to all uses of such devices, not just those involving the processing of personal data.
Where the use of a cookie type device does involve the processing of personal data, service providers will need to make sure they comply with the additional requirements of the Data Protection Act 1998 (the Act). This includes the requirements of the third data protection principle which states that data controllers must not process personal data that is excessive. Where personal data is collected, the data controller should consider the extent to which that data can be effectively processed anonymously. This is likely to be particularly relevant where the data is to be processed for a purpose other than the provision of the service directly requested by the user, for example, counting visitors to a website.
It should be remembered that the intention behind this Regulation is also to reflect concerns about the use of covert surveillance mechanisms online. Here, we are not referring to the collection of data in the context of conducting legitimate business online but the fact that so-called spyware can enter a terminal without the knowledge of the subscriber or user to gain access to information, store information or trace the activities of the user and that such activities often have a criminal purpose behind them.
Cookies or similar devices must not be used unless the subscriber or user of the relevant terminal equipment:
(a) is provided with clear and comprehensive information about the purposes of the storage of, or access to, that information; and
(b) has given his or her consent.
The Regulations are not prescriptive about the sort of information that should be provided, but the text should be sufficiently full and intelligible to allow individuals to clearly understand the potential consequences of allowing storage and access to the information collected by the device should they wish to do so. This is comparable with the transparency requirements of the first data protection principle.
The Regulations state that once a person has used such a device to store or access data in the terminal equipment of a user or subscriber, that person will not be required to provide the information described and obtain consent (and discussed above) on subsequent occasions, as long as they met these requirements initially. Although the Regulations do not require the relevant information to be provided on each occasion, they do not prevent this.
The Regulations do not define who should be responsible for providing the information and obtaining consent. Where a person operates an online service and any use of a cookie type device will be for their purposes only, it is clear that that person will be responsible for complying with this Regulation.
The Regulations specify that service providers should not have to provide the information and obtain consent where that device is to be used:
In defining an ‘information society service’ the Electronic Commerce (EC Directive) Regulations 2002 refer to ‘any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, and at the individual request of a recipient of a service’.
The term ‘strictly necessary’ means that such storage of or access to information should be essential, rather than reasonably necessary, for this exemption to apply. However, it will also be restricted to what is essential to provide the service requested by the user, rather than what might be essential for any other uses the service provider might wish to make of that data. It will also include what is required to comply with any other legislation the service provider might be subject to, for example, the security requirements of the seventh data protection principle.
Where the use of a cookie type device is deemed ‘important’ rather than ‘strictly necessary’, those collecting the information are still obliged to provide information about the device to the potential service recipient and obtain consent.
Regulation 6 states that consent for the cookie type device should be obtained from the subscriber or user but it does not specify whose wishes should take precedence if they are different.
There may well be cases where a subscriber, for example, an employer, provides an employee with a terminal at work along with access to certain services to carry out a particular task, where to effectively complete the task depends on using a cookie type device. In these cases, it would not seem unreasonable for the employer’s wishes to take precedence.
However, it also seems likely that there will be circumstances where a user’s wish should take precedence. To continue the above example, an employer’s wish to accept such a device should not take precedence where this will involve the unwarranted collection of personal data of that employee.
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