The Information Commissioner’s Office (ICO) has issued updated its Guidance on the rules on use of cookies and similar technologies just one day before it is due to begin enforcing the rules on 26 May 2012. The main change from the previous version published in December 2011 is a new and much expanded section on ‘implied consent’.

Stephen Groom, Head of Marketing and Privacy Law at law firm Osborne Clarke, said: “Previously ICO said that implied consent would be unlikely to work, now it says that implied consent is a valid form of consent.This is a striking shift in how ICO says it will tackle compliance. Just six months ago it said general awareness of the functions and use of cookies was simply not high enough for websites to look to rely entirely in the first instance on implied consent.

“Now it tells us that ‘implied consent has always been a reasonable proposition in the context of data protection law’ and that it remains so in the context of storage of information or access to information using cookies and similar devices. Although this new, pragmatic approach is undoubtedly more business-friendly, ideally it would have been good to have had earlier visibility of this dramatic change. It also remains to be seen whether this puts the UK out of step with Brussels and most other EU states.”