On Oct. 2nd, 2013, the WP art. 20 has published its Working Document providing guidance on obtaining consent for cookies (WP 208), as required by Directive 2002/58%EC, later amended by Directive 2009/136/EC.
The document initially examines some of the practices presently applied by various operators to obtain consent for the use of cookies; all such practices, according to the document, are certainly useful in providing guidance to the users, but the use of an individual practice per se does not guarantee compliance with the requirement of the Directive.The document then analyzes the notion of consent , and to this purpose it makes reference to thits previous opinion on consent (WP 187 of July 13, 2011). In order to be valid, consent has to be informed, unambiguous and free. Going into details of these requirements, the document examines the different way information can be given and consent can be expressed. In summary, the document states that the optimum for obtaining a valid consent must be a situation where a window should open as soon as a user enters a site, and in that window the information is given. The information must state in detail the different kind of cookies used by the site and indicate also which cookies can be accepted and which ones can be refused. Consent must not be conditional to accepting the cookies, and consent must be given as close as possible to the information window; finally, consent must be traceable and finally a real freedom of choice must be given to the user.
The document is all but satisfactory, in that it changes significantly the opinion previously expressed on consent. While WP 187 on consent had made it clear that an action, if preceded by a clear information, could constitute consent and that the directive has no requirement as to the form of consent, this document completely changes the notion of form required; in addition it also requires consent to be traceable, something that is not in the directive and implies keeping records of the click of each single user of a site.
The most disturbing thing is that the WP has adopted for a practice that no Internet operator has ever used, that may be costly (for the changes needed to adapt every site to guarantee compliance) and that may require significant modification in the various SW used to build a site. The tracing requirement is also completely new, and it also adds complexities and cost to the managing of an Internet site.
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