New rules on the use of cookies

This note is intended to alert you – in case you were not already aware – to the fact that, from 26 May 2012, website operators who run websites in the UK will need a user’s consent to store cookies on the user’s computer. Where the cookie involves the processing of personal data (ie data relating to a living, identifiable individual), operators must also comply with the Data Protection Act 1998, including the prohibition against processing excessive personal data. There may well be other regulations applicable outside the UK but those are beyond the scope of this note.

The previous UK rules required businesses to tell site visitors how the site used cookies (this was often covered in the website’s privacy policy) and give users to opportunity to ‘opt out’ if they objected.

Under the new rules, which come into operation on 26 May 2012, the user must not only be informed about the purpose behind the use of cookies on the site, but must also have given their consent to the placing of cookies on their user device. The new regulations do not specify exactly what information should be provided to the user, but the text must be sufficiently clear and detailed to allow individuals to properly understand the potential consequences of allowing storage and access to the information collected by the device.

The Regulations state that once a person has provided the required explanation and obtained consent from a user, they will not be required to repeat this exercise on subsequent occasions, as long as they met these requirements initially.

Guidance produced by the Information Commissioner’s Office (see link here) suggests that it may be possible for the consent to be implied – for example if the user is given the required information and continues to browse on the site, but does not specifically state whether or not they consent to the use of cookies. Obviously, relying on implied consent carries some risks, and may not satisfy other regulatory authorities, but the position may become clearer as practice and consumer understanding evolvee and the ICO may provide further guidance in the future.

If you are a website provider and have not started work on complying with the new rules, we recommend that you do so immediately. Your first priority should be to review your site to check what cookies you use and how you use them – and how intrusive that use is – and, where you need consent, decide on the best method for obtaining it.

For further guidance on this issue, please contact Philip Maddock at philip.maddock@rlb-law.com or Peter Coats at peter.coats@rlb-law.com.

Bribery Act – are UK businesses taking it seriously?

A recent research study has indicated that almost three-quarters (72%) of middle managers in UK businesses were unaware of the Bribery Act 2010 and, of the remaining 28%, half of them felt that they had not had adequate training in order to ensure compliance.

Given that it is nearly a year since the Act came into force (28 July 2011), it is surprising that there is still such widespread confusion and a lack of preparedness among UK businesses.

For guidance on how the Bribery Act could affect your business, please read the article we published on the implementation of the Bribery Act.

Putting the formality back into Deed formalities

A deed is a specific form of legal document. Unlike an agreement, deeds take effect on delivery (or, for companies, deemed delivery), not upon execution. We appreciate clients sometimes view us as being overly fussy in explaining how these documents should be signed, and the procedures that need to be followed, especially where there may be no completion meeting at the end of a transaction.

The case of R (on the application of Mercury Tax Group Limited and Masters) v Her Majesty’s Revenue & Customs [2008], undermined the practice of signing signature pages of deeds in advance and lead to guidance on acceptable practice. That was a welcome decision, in our view, because it halted the slide away from set methodology and supported the need for certainty in completion procedures.

More recently the case of Bibby Financial Services Ltd and others v Magson and others [2011] was based on a set of circumstances that may be highlight what was becoming the move away from clarity, and towards informality. Two individuals each signed a deed of guarantee and a deed of indemnity, with their signatures witnessed. The documents were unbound, signed and witnessed, in a pub. It was contended that the documents contained manuscript amendments, and the parties had only signed the deeds as “a gesture of goodwill”. Both the parties contended they expected clean copies to be produced, incorporating the manuscript amendments, and as such the documents had not been delivered. The Court found for the individuals, concluding that:

a. the mere signature of a deed is not enough,
b. it is not relevant that the document looks like a deed and has been handed to the purported beneficiary of it,
c. it is critical for delivery to occur that the person delivering the deed intends to be bound by it.

It looks as though we will be continuing to explain how deeds should be worded and signed, and the procedure to be followed to ensure certainty!

For more information on the points raised in this article, please contact Stephen Blair at stephen.blair@rlb-law.com


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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