2024 UK Cookie Consent Compliance: Mastering the Dos and Don’ts of using cookies on your website

UK Cookie Consent Rules

What are Cookies? 

Imagine stepping into your favourite bakery, where they remember exactly how you like your coffee, your preferred delicacy on the side and have it ready for your next visit. Similarly, cookies on websites are small bits of data stored on your computer, enhancing your online experience.

Consider these cookies as little memos left on your browser by websites. When you revisit, the site reads these memos and recognises you, streamlining your experience by:

• Keeping you signed in, eliminating the need to re-enter your password.
• Remembering the items in your shopping basket.
• Suggesting content you might enjoy based on your previous browsing.
• Allowing website owners to track your behaviour and therefore optimise their site to enhance user experience and tailor content more effectively to meet users’ preferences and needs.

Cookies come in various types, each serving different purposes, some are necessary to get best use of the site, some are to enable more targeted marketing – these are recognised legitimate interests for businesses but different rules apply and you need to understand what cookies your site is using and why:

• Essential cookies play a vital role in ensuring a  website operates properly. These cookies enable features such as managing  your shopping cart and login capabilities. Typically, essential cookies cannot be disabled because they are crucial for the website’s operation.
• Functional cookies are used to recognise you when you return to the website. They may be used to remember your preferences (such as your choice of language, region or content).
• Analytics and performance cookies collect information on how you and others like you use the website, aiming to enhance your future visits, for example by making it easier to find what you might be looking for in the future. Analytics cookies may also provide anonymised statistics on website usage – but it is increasingly difficult to truly anonymise any online user
• Advertising cookies are designed to show you adverts tailored to your interests, based on your browsing activities. The golden rule on use of advertising cookies is that it must be as easy to opt out as it is to opt in to advertising cookies being placed on a device.

While essential cookies are necessary and often cannot be opted out of, the rest are optional. As the website owner, it’s important to provide your visitors with transparent choices regarding functional analytics and advertising cookies. This approach respects user preferences and promotes a transparent relationship.

The UK Cookie Law

Use of cookies is governed by the UK GDPR, the Data Protection Act 2018 (DPA 2018), and the Privacy and Electronic Communications Regulations (PECR) Under UK Cookie Law, websites must gain explicit consent from users before storing or accessing information on their devices, beyond essential cookies.

This law underscores the UK’s dedication to online privacy, emphasising the importance of consent for building user trust and transparency. Non-compliance could lead to actions from the Information Commissioner’s Office (ICO), including fines and damage to reputation as well as claims from individuals. Whilst the ICO is generally recognised as taking a pragmatic approach to enforcement, cookies compliance is currently high on the radar. Following a call for action in late 2023 – we await the announcement of steps taken against those businesses that do not comply (for more information please see ICO warns organisations to proactively make advertising cookies compliant after positive response to November call to action | ICO.)

To comply with UK Cookie Law, websites must offer a clear cookie consent mechanism that details cookie types and purposes, allowing users to easily give or withhold consent. To be valid, consent must be informed, specific and freely given – it must be as easy to opt out as to opt in. Importantly, consent for multiple activities should not be bundled together and consent cannot be assumed from pre-ticked boxes or user inactivity.

Key points include:

• Explicit consent is required for non-essential cookies.
• Demonstrating compliance shows a commitment to privacy and compliance with the UK  law.
• Non-compliance risks include ICO enforcement, penalties and reputational damage.
• To demonstrate compliance you must have a clear, user-friendly consent process, which makes it as easy to opt-out as to opt-in.

By following the guidelines set out below, websites can align with the UK Cookie Law, enhancing trust and privacy respect with users.

Looking for a quick way through the maze? See our FAQs .

Navigating the Cookie Maze

Not All Cookies Need Consent – Understanding The Exemptions

Not every cookie on your website requires user consent! There are two exemptions: strictly necessary and communication cookies. You might think of these as the invisible crew keeping your website running smoothly.

“Strictly necessary” cookies do what it says on the tin: they must be necessary to provide a service requested by the user – the site would not operate without them.

The “communication cookies” exemption applies when the cookies are used for the technical storage of, or access to, information for the sole purpose of carrying out the transmission of a communication over an electronic communications network. These exemptions are complex and for the sake of brevity they are not described in detail in this article, it is best to seek advice before assuming the cookies you are using fall within these exemptions. Furthermore, even these helpful exemptions do not mean you are completely off the hook.

Transparency is still key: you must still inform users about these essential cookies and their purposes – they need to be covered in your cookie policy to keep everyone informed.

For all other cookies consent is your best friend. Make sure you have a clear and user-friendly system in place to give your users control over their cookie experience.

The compliance conundrum- Who is Responsible?

• The website proprietor: owns and operates the website, whether it’s an e-commerce giant or a personal blog. You’re responsible for understanding the law and ensuring your website implements cookie consent mechanisms.
  
• The data controller: on their own, or jointly with others, determines the purpose and means of processing personal data, including cookie data. The website owner will be a data controller – but so may other third-party service providers you use (e.g., analytics platform). If you use third-party cookies, both parties share responsibility for compliance. If the third party is based outside the UK there are steps you will need to take to ensure the data can be lawfully transferred to them (such steps go beyond the scope of this article). As a joint controller you may be responsible for the actions of your partners – and affected individuals could claim against either or both of you. 
  
• Data Processors: are third parties who act solely on behalf of, and under the instructions of, the data controller. A GDPR compliant processing agreement is required for all data processors. Remember: Ignorance is no defence. Taking a proactive approach is essential. Equip yourself with knowledge about the law, assess your cookie usage, and implement transparent consent mechanisms. Compliance isn’t just about avoiding fines; it’s about building trust with your users and fostering a responsible online environment.

So, take a deep breath, embrace your role as a responsible digital citizen, and navigate the cookie maze with confidence! Together, we can create a more transparent and privacy-conscious online world.

Breach of Trust, Breach of UK Cookie Law: the Price of Non-Compliance

Ignoring the UK Cookie Law isn’t just a risk, it’s a recipe for trouble. While essential cookies operate without consent, disregarding the need for user permission for others can result in significant consequences:

• Financial Penalties: the ICO has the authority to impose fines of up to 20 million Euros (over £17 million) or 4% of your global turnover, whichever is higher. This can be a substantial blow to any organisation.
• Reputational Damage: Consumers prioritise data privacy, and news of non-compliance can quickly erode trust and generate negative publicity. This can damage your brand image and deter potential customers, partners, and investors.
• Individual claims: individuals may seek damages for breach of the DPA 2018 or misuse of private information. 
• Missed Opportunities: By failing to meet user expectations and legal requirements, your organisation could be excluded from valuable partnerships and lose out on attracting privacy-conscious consumers.

Compliance, however, offers numerous benefits:

• Building Trust: Demonstrating respect for user privacy through transparent cookie consent mechanisms and compliant policies fosters trust and loyalty, leading to a stronger customer base.
• Reduced Risk: Adhering to the UK law minimises the risk of hefty fines and potential legal action, protecting your organisation’s financial stability.
• Competitive Advantage: In an increasingly privacy-conscious environment, compliance showcases your commitment to responsible data practices, potentially attracting partnerships and customers while strengthening your brand image.

Remember, compliance with the UK Cookie Law is not just a legal obligation, but a strategic choice. By prioritising user privacy and ethical data practices, you can safeguard your reputation, avoid penalties, and unlock new opportunities for success in the digital world.

How to comply – DIY and Professional Options

Ensuring your website complies with the UK Cookie Law can feel like navigating a complex maze. But fear not! Whether you prefer a DIY approach or seek professional guidance, you have options to build a compliant and user-friendly online experience.

DIY Approach:

For website owners seeking a cost-effective solution, tackling the audit yourself is possible. Here’s what to do:

1. Identify Your Cookies: Use tools like “Cookie Scanner” or browser developer tools to scan your website for all active cookies. Categorise them as essential (strictly necessary and communication cookies), functional (e.g., language choice), analytics (e.g., website usage monitoring), or advertising (e.g., tracking across sites).
2. Assess Transparency: Do you have a clear and accessible cookie policy explaining each cookie type and its purpose? Does it explain how users can control or disable cookies?
3. Evaluate Consent Mechanisms: Do you have a user-friendly consent banner requesting permission before non-essential cookies are placed? Is it as easy to opt in as it is to opt out (a single option to decline all non-essential cookies)? Is consent freely given and actively obtained (no pre-ticked boxes)?
4. Review Legal Aspects: Understand shared compliance responsibilities if you use third-party cookies. Ensure you have a lawful basis for processing data (especially any sensitive data) collected through cookies.
5. Check your agreements with third parties: do you have GDPR compliant data processing agreements in place? Do you need to take additional measures to protect the data being transferred overseas (use the ICO template International Data Transfer Agreement and Transfer Risk Assessment tool). 
6. Update your accountability documents: Check that use of cookies is appropriately covered in your privacy notices and record of processing activities. 

Professional Approach:

For more complex websites, data-intensive situations, or peace of mind, consider enlisting professional help:

• Technical Specialists: Identify any potential cookie compliance gaps on your website. Backona, a company specialising in technical cookie compliance, offers a free technical audit to assess your current cookie implementation. This audit can provide valuable insights and help you determine your next steps towards achieving compliance. – request your free cookie audit.
  
• Data privacy consultants and specialist UK law firms: Consultants with expertise in cookie compliance can analyse your specific situation, evaluate your privacy policy and data handling practices, and offer expert advice tailored to your industry.
  

For comprehensive legal guidance and analysis, we recommend engaging a law firm which specialises in UK data protection such as Greenwoods Legal LLP. 

These firms have expertise in navigating the intricacies of data protection laws. They can review your website, privacy policy, and data handling practices to ensure compliance with legal requirements. Additionally, they provide tailored legal advice specific to your unique needs.

Navigating Cookie Regulations: A Global Overview (UK, EU, and USA)

Throughout this article, we’ve zoomed in on the UK’s cookie law, but it’s essential to remember that some UK-based websites may also attract visitors from the EU and the USA. So, let’s take a moment to understand the basics of cookie laws in these regions as well.

UK Cookie Consent Basics

If your website is based in the UK, you must ask visitors to say “yes” or “no” to non-essential cookies. This consent must be clear and freely given—no sneaky pre-ticked boxes allowed. You can use essential cookies without consent to keep your site working well, but you still have to tell your visitors about them.

EU Cookie Rules

Over in the EU, things are a bit tighter. Their rules, under the GDPR, are strict about asking for permission for most cookies, and you can’t lean on the “we need this to run our site” reason as much. It’s all about giving people control over their personal information.

Cookie Consent in the USA

Now, the USA’s way of handling cookies is more laid-back. There isn’t a one-size-fits-all federal law that says you need to get consent for cookies. Some states do their own thing and have specific rules, but mostly, industries look after themselves, deciding on the best way to handle cookies.

Understanding these basics can help make sure your website is playing by the rules, no matter where your visitors are coming from.

Conclusion: Navigate the Cookie Maze Responsibly and Reap the Rewards

Understanding cookies and adhering to the UK Cookie Law may seem daunting, but it’s crucial for building trust, avoiding penalties, and unlocking opportunities in the digital world.

This article has equipped you with some basic knowledge and resources to help you:

• Identify cookie types on your website and their purposes.
• Craft a transparent cookie policy explaining user control and consent.
• Implement a user-friendly consent mechanism for non-essential cookies.
• Seek professional guidance if needed, depending on complexity and data intensity.

Remember, compliance is not just about rules; it’s about respecting user privacy and ethical data practices. By embracing this approach, you can:

• Build trust and loyalty with your users.
• Minimise legal risks and financial penalties.
• Gain a competitive advantage in a privacy-conscious market.

Try our free cookie audit offer and valuable resources to guide you. Together, let’s create a more transparent and responsible online environment.

The Full Picture: Cookie Consent Works Best with a Clear Privacy Policy 

Exploring data protection involves more than just cookie consent mechanisms; it includes understanding privacy policies and legal frameworks. It’s wise not to navigate these complexities alone but to seek expertise from a law firm.

Greenwoods specialises in guiding businesses through the maze of compliance, offering tailored support packages. For comprehensive assistance in data protection, consider consulting Greenwoods.

Visit Greenwoods’ DPO Support Package for more details. 

Remember, while the tips and resources in this article provide valuable information, they are not a substitute for legal advice. Always consult with a legal professional when it comes to compliance matters.

Additional Resources: 

1. Information Commissioner’s Office (ICO): The ICO provides a comprehensive guide to Privacy and Electronic Communications Regulations (PECR), including cookies and similar technologies. This guide is a valuable resource for understanding the legal requirements and best practices for using cookies on your website. Access the guide here. 

2. UK Government’s Guide to PECR: This guide explains the Privacy and Electronic Communications Regulations and what they mean for you. It’s a useful resource for anyone looking to understand the law in more detail. Visit the guide here.

3. Cookie Law FAQ: This resource provides answers to frequently asked questions about the UK Cookie Law. It’s a great starting point for anyone new to this topic. Check out the FAQ here.

FAQs 

Expertise at Your Fingertips

This article is brought to you by a team of experts!

• David Patrykowski, Director at Backona, leverages his knowledge of data analytics to create customised and compliant cookie consent solutions, ensuring UK marketing data compliance and accuracy.
• Penny Bygrave, Head of Data Privacy & Senior Associate at Greenwoods Legal LLP, is a recognised authority in the world of UK data privacy, providing invaluable legal insights.