implied consent (cookies)

Just been reading the http://www.guardian.co.uk/technology/2012/may/26/cookies-law-changed-implied-consent about the latest information about cookies from the ISO. In the article it says "In an updated version of its advice for websites on how to use cookies – small text files that are stored on the user's computer and can identify them – the Information Commissioner's Office (ICO) has said that websites can assume that users have consented to their use of them." This is not true the advice from 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.

The latest version v3 of the adice from the ICO says the following

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. For implied consent to work there has to be some action taken by the consenting individual from which their consent can be inferred. This might for example be visiting a website, moving from one page to another or clicking on a particular button. The key point, however, is that when taking this action the individual has to have a reasonable understanding that by doing so they are agreeing to cookies being set.

The still requires the user to be informed and some form of interaction is required, at the basic level a note saying that "using this site implies permission for us to use cookies" should be given with info on the cookie usage available.