Implied consent versus informed consent

The recent implementation of the EU ‘cookie law’ is a huge shift in the way EU websites approach customer privacy.  On 26 May 2012, the former understanding of implied consent gave way to a requirement for informed consent, at least for websites that are aimed at EU customers and browsers.

Implied consent has been implicit in almost every website ever created.  By virtue of the fact that the customer navigates around a particular website, agreement with the site’s privacy policies and acceptance of cookies and other data-gathering software is implicit.  The customer does not have to specifically agree to those policies, just use the website.  Under the new implied consent EU cookie law, agreement must specifically be given prior to use of the website.  Once the customer agrees to the cookies and use of other analytics, however, that preference can be stored (ironically, in cookies) and he or she will not have to repeat the process on subsequent visits.

Implied EU cookie consent guidance has been the unwritten ‘law of the land’, but unwritten laws can be overwritten, which is exactly what happened with the EU e-Privacy Directive, as the law is officially known.  Although it is not known yet exactly what effect this will have on e-commerce websites, it is estimated that business will drop for a time.  Customers, not used to pop-up warning boxes, may navigate away from sites at first, however, business should return to normal after a time, as any other EU-targeting website will provide a similar experience.  After a few times, the customer will begin to view the pop-up as normal, and will begin to agree to the cookies.

One thing that website owners are concerned about is the competition from other areas of the world where implied consent is still the norm.  Canadian and American websites, for example, will still operate under implied consent and not feature the pop-up warnings.  Will customers shop at those sites, instead?  While the difference in the websites will be nothing more than the pop-up box or other device, web users are a fickle bunch and some may decide to head for non-EU websites.  Some merchants are hoping that the higher shipping charges will entice many to return.

The UK may already be leaning toward a return to implied consent, but whether that will stand as the rest of the EU uses informed consent only remains to be seen.

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