Electronic privacy & the use of ‘cookies’

The E-Privacy Directive (2009/136/EC) was transposed into law in Ireland with the enactment of the European Communities (Electronic Communications Networks and Services) (Privacy and Electronic Communications) Regulations 2011, which took effect on 1 July 2011. Regulation 5(3) deals, among other things, with the storage and retrieval of information on ‘terminal equipment’, most commonly a computer user’s browser.

Modern browsers have different mechanisms of data storage on a visitor’s machine, the most common method being via the use of ‘cookies’.

A cookie is a small file on the computer’s hard drive that stores pieces of text. A browser can set and collect information from this text file when a visitor enters a website. A cookie might report back to the originating website details of when you last visited their site, or the number of times you visited, or details of your browser’s history.

Many law firms facilitate the implementation of cookies on their websites when using the Google Analytics system of tracking visitors to their home page. Social media widgets also are known to set cookies. The 2011 regulations require that consent to the placing of cookies should be obtained and that a website should offer “clear and comprehensive information” in connection with the information being collected.

The 2011 regulations do not specify that prior consent needs to be obtained. Therefore, we would recommend that, if your website uses cookies, you should, at a minimum:

• Include a link to your privacy policy on all pages,  
• Explain in that policy document how and why you use cookies, stating, for example, that the firm uses cookies to count visitors to your website (if that is the case),  
• Detail how, if a visitor chooses to accept cookies, they also have the ability to later delete cookies that they have accepted. For example, in Internet Explorer 9, cookies can be deleted by selecting ‘internet options’ and, under the ‘general’ tab, selecting the heading ‘browsing history’ and then selecting the ‘delete’ button. Finally, tick the ‘cookie option’ and click ‘delete’.