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Cookies often play a crucial role in enhancing user experiences and tracking website or app performance. However, businesses must follow important cookie law rules and comply with the Privacy and Electronic Communications Regulations (PECR) to avoid negative consequences such as regulatory enforcement action. Understanding and implementing the correct cookie law compliance measures can help safeguard your business from this risk. This article explores some critical steps to help prevent cookie enforcement action against your company when using cookies.
What Are Cookies and Which Legal Rules Govern Their Use?
Cookies are small text files which are stored on a user’s device. Businesses commonly deploy cookies on websites and mobile apps.
Cookies often have various valuable purposes, such as remembering user preferences, logging user activity, and providing personalised content. While cookies offer businesses significant benefits, they also raise legal concerns, meaning there are strict legal rules governing their use.
PECR safeguards privacy rights related to electronic communications. The PECR sets out mandatory rules regarding how organisations can use cookies and similar technologies.
Breaching cookie law rules is severe and can have negative implications, including significant fines. The data protection regulator, the UK Information Commissioner’s Office (ICO), can use various enforcement powers to address PECR breaches, including criminal prosecution and issuing monetary penalties of up to £500,000 against organisations.
The ICO has taken various enforcement actions against businesses for breaching cookie law rules, demonstrating the vital need to prioritise compliance with stringent legal requirements. Therefore, companies should take active steps to stay on the right side of the law and avoid enforcement action.
Which Steps Can Help Prevent Enforcement Action?
The steps your business needs to take for compliance depend on the types of cookies it uses and why. However, here are some general rules many companies can follow to help prevent enforcement action:
Take Legal Advice on Cookie Law Rules
Cookie law rules can be complex and cause complications and misunderstandings. There is sometimes confusion between cookie law rules and data privacy law rules and their overlap. If you require support understanding these rules, consider seeking legal advice to guide you before your business deploys, particularly as cookies can be high risk.
Be Transparent Regarding Your Use of Cookies
Transparency is crucial when it comes to cookie use. Users must be informed about the cookies they use and their purposes. You can achieve this by publishing a detailed cookie policy that explains how your business uses cookies.
You should begin by conducting a cookie audit to review and document the cookies your business uses. Identify all cookies and their purposes, whether first-party or third-party and classify them (e.g., whether they are necessary, performance, functionality, or targeting cookies). You will then need to inform users about all cookies and what they do clearly.
Once you have completed your audit, you should use it to draft a cookie policy displaying important information such as:
- a list of all cookies used on your site, categorised by type (e.g., necessary, performance, functionality, targeting cookies);
- detailed information on the purpose of each cookie, how long it will remain on the user’s device, and what data it collects; and
- clear instructions on how users can manage or delete cookies from their browsers.
The cookie policy should be easily accessible and provided before your business deploys cookies.
Implement Compliant Cookie Consent Management Procedures
There are stringent legal rules regarding users’ need to consent to using non-essential cookies. Effective cookie consent management is, therefore, essential for compliance.
Your business should implement a cookie consent management process, allowing users to manage their cookie preferences easily.
This factsheet sets out how your business can become GDPR compliant.
A formal system, such as a consent management platform, can significantly simplify the process and help demonstrate compliance. The process should provide an easy-to-use interface for users to accept, reject, or customise their cookie settings. It should also record user consent, providing a clear audit trail.
You can also use a simpler cookie banner to enable users to accept or reject cookies. However, careful drafting of your cookie banner is vital.
Carry Out Regular Cookie Compliance Audits
You should conduct regular audits of your cookie usage and consent management practices. You must also ensure your practices align with the latest legal requirements and industry best practices and address any issues promptly to maintain compliance.
You should also keep detailed records of your compliance efforts, including cookie audits, user consents, and updates to your cookie policies. This documentation can be vital if you need to demonstrate compliance to regulators.
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Key Takeaways
If you are using cookies, your business must comply with cookie law rules under PECR.
Taking the following steps can help your business avoid enforcement action:
- you should understand and comply with PECR and other relevant cookie laws, taking legal advice if necessary;
- you should ensure transparency in your cookie use through clear communication with users through a Cookie Policy;
- you should implement a transparent cookie consent management process; and
- you should regularly audit and update your cookie practices to stay compliant and document your compliance efforts thoroughly.
If you need legal advice on compliance with cookie law rules, LegalVision’s experienced data, privacy and IT lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 0808 258 4780 or visit our membership page.
Frequently Asked Questions
1. What is a cookie policy?
A cookie policy is a document which informs users about the cookies your business uses, their purposes, and how users can manage their cookie preferences. It provides detailed information on the types of cookies, their function, and how they operate so that users are transparent about their use.
2. Do the PECR rules apply to cookies?
Yes, the PECR rules apply to cookies. You must obtain explicit consent for most cookies and provide transparent information about their use. This includes ensuring that users can easily opt in or out of cookie use.
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