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Website operators need to remember that where their activities result in the collection of sensitive personal data such as information about an identifiable individual’s health then data protection law might require them to obtain explicit consent.
Early reporting on the new rule led some to believe that an explicit, opt-in style consent would be required for every cookie each time it was set.
The Information Commissioner’s guidance made it clear that although an explicit opt-in mechanism might provide regulatory certainty it was not the only means of gaining consent.
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”.
In many cases, to create a situation in which implied consent is acceptable to subscribers, users and the regulator it would still be necessary to follow the steps set out in the Information Commissioner’s existing guidance.
To explain further it might be useful to unpack what we actually mean by the term “implied consent” remembering throughout that consent (whether it is implied or express) has to be a freely given, specific and informed indication of the individual’s wishes.
Following on from my last blog post the 26th of May has passed and according to a recent KPMG study, 95% of companies have yet to comply with the legislation.
However, things DID change only hours before the compliance was due to come into force.