Blog Archives
Implied Consent could be all you need for Cookie Compliance
With the 26 May deadline for compliance now behind us, the latest guidance from the UK Information Commissioner’s Office (ICO) has raised a few eyebrows. The requirement for explicit consent before a site can store cookies on another user’s device has been relaxed with the assumption of “implied consent” now being accepted as a valid means to comply with the law.
What does this mean? At the simplest level, a user who makes a conscious choice to visit your site could be deemed to have given their implied consent to receive cookies, removing the need for you to collect their explicit consent. For this implied consent to be sufficient a site owner still needs to ensure that their privacy policy is easily discoverable and clearly lays out the ways that cookies are used on your site. However, the ICO also warns:
Implied consent is certainly a valid form of consent but those who seek to rely on it should not see it as an easy way out or use the term as a euphemism for “doing nothing”.
That said, the likelihood of the ICO imposing financial penalties on any organisation for failing to comply with this law is, by the ICO’s own admission, close to zero. Some may read this as an invitation to do nothing, and therein lies the most absurd aspect of this unenforceable new law.
If you haven’t already, watch Dave Evans’ video below to familiarise yourself with the steps you may still need to take to stay on the right side of the law. As long as you understand how cookies are used on your site, don’t use cookies in a bad way, have a clear privacy policy, and take some basic steps to ensure that visitors know that cookies are in use and why, you should be safe.
Mind you, I’m not a lawyer so seek legal advice if in doubt. Good luck!
Further reading:
The Online Police: Understanding the ASA’s new digital media remit
Last week saw confirmation that the UK’s Advertising Standards Authority (ASA) will have a significantly extended remit to protect consumers from misleading or otherwise inappropriate online advertising from 1st March 2011. The ASA already polices all paid-for digital marketing activities; its extended remit gives it the power to monitor and highlight non-compliance of advertisers’ marketing communications on their own web sites and on other non-paid for online spaces. This means, for example, that the ASA can rule against inappropriate marketing practices on, say, a brand’s Facebook page or Twitter account. Even free games used to promote a brand and user-generated content re-purposed for advertising will be governed by the ASA’s new extended powers.
The sanctions that the ASA can apply remain quite limited—this is a self-regulatory code after all—but include publicising adjudications through the national media, naming and shaming non-compliant advertisers on the ASA web site, and removing paid-for search ads that link directly to any non-complaint marketing content. In some instances, the ASA also has the power to buy its own search ads to highlight the non-compliance and we should expect the big search engines to treat the ASA’s ads very favourably and possibly penalise any non-compliant brand owners through their search algorithms.
What does this mean for UK-based digital marketers? It’s more important than ever that you understand and comply with the codes laid down by the Committee of Advertising Practice (CAP). This understanding must extend to all marketers; not just those buying paid ads, but also to anyone who places branded content onto any online platform. If a Product Manager or Sales Executive provides content to your Facebook or MySpace or LinkedIn or whatever online page, they must comply with the CAP or risk putting your company in hot water with the ASA.
I welcome this change; for most advertisers this means ‘business as usual’, but for a minority of less principled online marketers the ASA’s new remit will call for rapid improvements to their behaviour online. From March 2011, it’ll be even harder for unscrupulous marketers to use sharp practices to ensnare their customers/victims, and the ASA’s extended remit will hopefully provide sufficient threat to discourage inappropriate behaviour.
One final thing: the ASA doesn’t do its work for free and is funded through a 0.1% levy applied to all UK ad spend, which is collected by ASBOF directly from the media buying agencies. From 1st march 2011, all paid-for online marketing including paid search ads, mobile marketing, and affiliate marketing will also be subject to this 0.1% levy. So, plan for your online ad costs to rise by this very small percentage and look forward to having additional protection against sharp online practices.
Further reading:
