Irony and embarrassment are the order of the day as the Information Commissioner’s Office, which is responsible for ensuring GDPR compliance in the websites of businesses and organisations has been forced to admit that its own website is not GDPR compliant.
Cookie Consent Notice
The problem, as pointed out to the ICO by Adam Rose, a lawyer at Mishcon de Reya, is that the ICO’s website currently uses implied consent to place cookies on mobile devices, which is prohibited under the Electronic Communications Regulations (PECR) 2003. These Regulations operate alongside GDPR, and as highlighted on the ICO’s own website, consent needs to be clearly given for cookies (e.g. by a tick box) and where they are set, the website needs to give users, mobile or otherwise, a clear explanation of what the cookies do and why.
Article 6
It has been reported that Mr Rose argued that the ICO’s own website’s cookie consent tools were at odds with Article 6 of PECR.
ICO’s Own Guide
For example, in the ICO’s own online guide, in terms of getting marketing consent, it states that “some form of very clear positive action” is needed, “for example, ticking a box, clicking an icon, or sending an email – and the person must fully understand that they are giving you consent”.
Cookies Admission
Under “Cookies” in the guide, and in admission of not being fully compliant itself at the moment, the ICO now states that “We use a cookies tool on our website which relies on implied consent of users. In recognition of the fact that the implementation date for the revised e-Privacy Regulation remains unknown, we are taking reasonable steps now to align our use of cookies the standard of consent required by GDPR. This means that we are in the process of updating the tool (Civic Cookie Tool) which, by default, requires explicit opt-in action by users of our website.”
This means that the ICO has yet to upgrade to the version of the Civic Cookie Tool which includes explicit opt-in, and therefore, the ICO isn’t currently compliant with the laws that it is supposed to help implement and uphold.
Why?
Even though the ICO announced back in May last year that it would be upgrading to the new version of the Civic Cookie Tool, this has not yet happened. This appears to indicate a possible failure on the ICO’s part in the planning and implementation aspects of this particular tool on its website.
Also, as some tech and security commentators have pointed out, there is still a lack of clear legal rules on cookie compliance, and this has even led to confusion on some points among data protection experts.
It could also be argued that a lack of regulatory enforcement against cookie compliance breaches may mean that most website operators can still put consent rules to the bottom of the list of business priorities with no fear of consequence. It’s also unclear if the regulator would or would not be able to carry out some kind of enforcement of the law against itself.
What Does This Mean For Your Business?
Many businesses may be thinking that, aside from the obvious irony of the regulator not being totally compliant, what hope do the rest of us have of getting it right if the ICO can’t?
This story could also act as a reminder to businesses that consent is a complicated area in data protection, and that it may be worth revisiting what cookie consent tools are in place on their websites and whether they are up to date and compliant. For example, as the ICO has discovered, if you’re responsible for implementing the updated version of tools relating to your GDPR compliance, the planning and implementation needs to be managed in order to avoid unwittingly leaving the organisation open to possible infringements of current regulations.
