Spain begins disciplinary proceedings against site for violating Cookie Law

http://translate.google.com/translate?sl=auto&tl=en&js=n&prev=_t&hl=en&ie=UTF-8&u=http%3A%2F%2Fwww.pabloburgueno.com%2F2013%2F08%2Fsancion-por-incumplir-la-ley-de-cookies%2F&act=url

by martinml • 13 years ago

79 79 13 years ago

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martinml3• 13 years ago

Sorry for submitting a Google Translate link. It's not doing a perfect job on a legal text but I didn't find any source in English. This is a blogpost of the lawyer taking this case, and the client name is unknown yet.

Here's my summary of some facts (IANAL!):

- The cookies being investigated are from Google Analytics, Google Maps, YouTube, Adsense and WordPress.

- The website was setting the cookies in the browser and then showing a popup warning the user that the site used cookies and that if they didn't want them they could delete them.

- The AEPD is a governmental organization which watches over personal data and privacy infringements. If a company infringes your rights as a citizen, you submit a complaint to the AEPD, and they can investigate and fine if necessary.

- The AEPD states that the fine is imposed because the website should not set any cookies until the user had accepted the warning.

- The Spanish law being used here is RD 12/2012, which was created using the 2009/136/CE EU Directive as its framework.

- The fine is still not final. They can still present allegations.

potatolicious2• 13 years ago

This is interesting. Is it clear in the law that no cookies shall be set until the user has accepted the warning, or is that an open interpretation in this particular case?

My initial reaction is that this seems fair. The fine is substantial, but not deadly to an enterprise, so it would serve as a warning without being catastrophic for them.

I'm not a EU citizen - but presumably the EU's rather strict laws re: cookies derives from privacy and a desire not to be tracked at all. A user who has accepted Google cookies from other sites need not submit to the same tracking cookie on your site - but even if you delete the cookie aftewards, presumably Google Analytics has already captured the visit.

And there is, as far as I know, no way to remove that event from Google Analytics.

martinml3• 13 years ago

Is it clear in the law that no cookies shall be set until the user has accepted the warning, or is that an open interpretation in this particular case?

This is a very liberal translation of the relevant part of the law[0]:

"Those who provide services will be allowed to use storage devices in remote computers, provided that the owners have given their consentment AFTER [my emphasis] they have been informed clearly and completely about the utilization of the private data".

[0] http://noticias.juridicas.com/base_datos/Admin/l34-2002.t3.h..., article 22.2.

ealexhudson2• 13 years ago

This is one of the most stupid and anti-user laws on the books. Worse, it's probably the only law I've ever seen have an instant and devastating effect on the UX of a swathe of websites.

Hopefully they are going to start suing people regularly (unlike the inaction being taken in the UK) so that business wakes up to this stupid law and finally gets it repealed, the sooner the better.

kintamanimatt2• 13 years ago

Can it really be repealed by the Spanish government if they're required to enact such a law as a result of an EU Directive? They could take the UK's approach of turning a blind eye, but I tend to feel it's wrong for a country to pick and choose which laws to enforce.

freehunter2• 13 years ago

I find it really annoying as a non-EU citizen using a site in a non-EU country but still having to dismiss these warnings even on mobile devices (where it can be much harder to hit the link/button).

The Internet doesn't care what country I'm from, so why are we designing it that way? The same goes for non-US content restrictions as well.

malandrew3• 13 years ago

The best balance would be to present the user with a page that lists all the things the site would like to track and let the user opt out of anything they don't want tracked.

Some people may value a "degraded" experience over being tracked.

I put "degraded" in quotes because it's often a degraded experience for the company's profits not the end-user.

Please, give us some examples of how this is "devastating" for the UX of a swathe of websites.

albertoperdomo5• 13 years ago

Please also note that according to the post if the sites are hosted in third party platforms like Facebook, Tumblr, that install tracking cookies the owner of the site can still be sued, even if it's without his control.

In practical terms this means that any individual or business hosting having a Facebook profile page or blog on Tumblr could be sued.

This is just Spanish law at it's best (I'm Spanish, too)

DerpObvious2• 13 years ago

In practical terms this means that any individual or business hosting having a Facebook profile page or blog on Tumblr could be sued.

This just says that they're responsible for the effects of the services they contract, in addition to acts they undertake directly.

Should a person building a bridge get out of the liability because they contracted out parts of the work? No.

Neither should the operator of a website because they opted to use services provided from a third party for part (or all) of their web services.

icebraining2• 13 years ago

If you bought on an online store, an it used an insecure third-party payment provider which leaked your CC number all over the web, would you say the same?

txutxu• 13 years ago

A bit of fun about all this:

The local government site of my spanish country, uses even javascript to record your mouse clicks in US (and cookies without advise, of course), pixel based tracking in case you block javascript, and more on the same line...

And it has been said in their "opengob" sessions two years ago... and you know what? the local gov does not have any proceeding about their faults.

The same than we have known grabbers (with proceedings that always finish the same), as politics and monarchy, which in turn, control the lawyers and the public security we pay (in the figurative sense of the word).

It's not nice to be Spanish these days. A Spanish (writing from other country).

scrrr• 13 years ago

Is there an open source JavaScript snippet somewhere that I can put on my page and it shows a pop up prompting users to accept cookies?

stingraycharles• 13 years ago

There are several, with http://www.civicuk.com/cookie-law/index and http://silktide.com/cookieconsent being the most popular afaik.

ealexhudson2• 13 years ago

If your server sends cookies automatically, it would fall foul of this Spanish implementation of the law (supposedly). Implied consent does not cover simply giving the users information, and some of the cookies being argued over are third-party too. There's no third-party snippet you can drop in and "fix" this for Google Analytics (for example).

vicentereig• 13 years ago

You actually need to avoid cookies getting stored until users give their consent to do so. Probably something like the rack-policy Ruby gem linked below will help making sure there is no cookies at all.

https://github.com/peter-murach/rack-policy#rack-policy

I ignore if there are similar libraries for other platforms.

terhechte• 13 years ago

Is this message only required on commercial sites? Or do I need to display the cookie UI whenever I have any kind of html on the web that uses Google analytics (i.e. cookies)?

notatoad• 13 years ago

Has there been any work done at all to standardize this process and allow users to opt-in to cookies at a browser level, so that we can all stop seeing this stupid warning? would that even be allowed under the law?

i tried to download a firefox extension called "cookiesOK", but it doesn't seem to work in most cases.

ensmotko• 13 years ago

The problem is that every site owner displays a slightly different popup. A few of my friends were trying to build a chrome extension[1], but they soon figured out they are going to need custom Javascript for every site in Slovenia (and others of course, but they were focusing on Slovenia) and they abandoned the project.

Personally I believe EU should target browsers not site owners for this. At least by doing so we would get a standardized UI and the ability to opt-in or out.

[1] https://chrome.google.com/webstore/detail/peeshkot/idfkeeahc...

AJ0072• 13 years ago

One would assume that the act of visiting a web site, from a personally identifiable IP address, using a web browser that accepts cookies is an act of consent to receive those cookies. The behavior is both expected, avoidable, and blockable.

This approach -- either by law, or by some "do not track" flag broadcast to web sites is the equivalent of walking through a busy city with hundred dollar bills hanging out of your pocket, with a sign hanging around your neck requesting that no one takes your money -- all when a simple wallet in your pocket would be adequate.

There are serious privacy issues when it comes to the internet and tracking. The "solutions" we've seen targeting cookies in both the US & EU would be laughable if they did not threaten to add considerable legal obligations over even the most casual of web site owners.

Maarten882• 13 years ago

Has there been any work done at all to standardize this process and allow users to opt-in to cookies at a browser level

Yes, it's called DNT (Do Not Track)

It could solve exactly this problem, but it is effectively sabotaged by the internet industry.

ripberge• 13 years ago

Yikes. I'm generally in favor of web privacy, but with unemployment numbers like theirs, that seems like the last thing Spain needs right now.

albertoperdomo5• 13 years ago

I'm from Spain and I've been running a webdev shop for 6 years now.

Things are getting worse here and the government if anything is actually just making things more difficult for everyone.

I agree with those trying to protect their privacy but for the sake of practicality they should look for a pragmatic approach.

BTW, making individuals and companies responsible for tracking cookies installed by third party platforms like Facebook, Tumblr, etc. because of this law doesn't really help us being more competitive either [sarcasm sign].

lingben2• 13 years ago

can you please explain a little bit more about this cookie law? the only one I heard about was the UK cookie law and it was abandoned months ago.

which websites does it apply to? websites hosted in Spain? websites of commercial businesses operating in Spain? any website with an address in Spain?

vklj• 13 years ago

Actually, most warning implementations punish those users that disable cookies in their browsers by forcing them to see the obnoxious warning every time they visit the site.

This is arguably worse than the previous situation.

mindstab• 13 years ago

... This isn't some "punishment" this is how the internet works. If you opt out of being tracked and cookies... how would that be remembered? That is really a sign it's working. This is part of why this is such an amazingly defective law

pgeorgi2• 13 years ago

Some pages (eg. all that use the consent.truste.com script) use localStorage to store the decision. That way the decision remains client-side and can still be persistent by hiding the question via javascript.

lifeisstillgood2• 13 years ago

I am surprised - isn't this what we want? Instead of secrecy, governments warn everyone they are being tracked online. And we moan about it. It wrecks the UI, it is annoying. Folks - this is the Snowden debate, but without the security services.

Yes they should have got into the RFC / IEEE debates (which are fast becoming laws of their own), yes they should be doing it better. Yes they should stop monitoring everyone.

But they are at least starting the debate. And not on an obscure tech forum, or in dusty volumes of proceedings, but right there, in everyone's face.

And until we find a way to make privacy and surveillance and technology triggers in every politician's Skinner box, then its probably the best start we can get.

bobsy• 13 years ago

I agree that the one good thing this law has done is start a debate.

On the downside it is negatively affecting how you interact with websites. Often before I can even determine if I am on the right website I get a pop up message before I can continue.

Recently I was on a shopping site and I clicked no to the cookies thinking it would only stop tracking cookies. Was surprised when my cart wouldn't save. It is silly that this breaks the site's basic functionality.

If anything browser vendors should be doing more. I do not think this can be done via legislation though. I also think prosecuting websites is silly. If these cookies are so toxic the companies running the services should be showing messages.

For example. Analytics. Why is it that I need to "opt in" to this on every site with a pop up? Why can't I just click YES and be done with it when it comes to this service?

You could then have non-tracking cookies essential to the running of the service exempt from this law.

prof_hobart• 13 years ago

It's not the Snowden debate, not by a long distance. Some cookies (like ad trackers) can be annoying/slightly disturbing, but even before the cookie law they were pretty obviously there and in most cases pretty easily opted out of already if you knew what you were doing.

I don't remember seeing the "opt out of NSA surveillance" option anywhere in my browser or email client.

albertoperdomo5• 13 years ago

The problem is that there is no debate about how to deal this in pragmatic terms. Instead, they are just issuing fines on businesses that are probably already having a hard time keeping themselves alive.

The whole situation would be completely different it this would have been discussed in practical terms. They could have matured possible technical solutions for this and also made sure that big third party providers (Facebook, Tumblr, etc.) that host websites for EU businesses comply with this regulation, rather than making the business owner responsible.

If you get a fine of €30K I bet you wouldn't call that a debate, correct?

AJ0072• 13 years ago

Not even close. These solutions we have seen, both legal and from the browser level, are the equivalent of walking around nude in a busy city with a sign hanging around your neck saying "Please no photos." (I gave a slightly different analogy in another comment.)

A browser "do not track" request presents absolutely no true privacy, nor does fining forcing all web sites to implement custom pop ups which block site usage if the visitor doesn't agree.

These solutions are stupid, the things they claim to accomplish are already possible by the user's own choice, if someone could be bothered to tell them how to do it.

If these political entities really cared about privacy here are some of the things they would be doing:

a) blocking foreign intelligence agencies from openly monitoring all internet traffic in their country (and I don't just mean the NSA)

b) pass laws radically reducing or eliminating ISP logs rather than increasingly them

c) investigate private companies engaged in mass-surveillance that also use cookie-less tracking techniques. (Facebook mass facial recognition, several nameless companies claiming to prevent ecommerce fraud, etc)

e) spend money educating the public about simple, free, existing techniques to ensure their personal privacy

What you are witnessing in regards to cookies is a hoax, meant only to distract from the real issues.

lifeisstillgood2• 13 years ago

if someone could be bothered to tell them how to do it.

Its been clear and simple how to turn off cookies. But the silver haired old grandmother simply does not read those sort of instructions. That kind of knowledge comes from osmosis, from the surrounding culture.

We want to avoid 150 years of pollution before the digital equivalent of the EPA or the Clean Air Act. We want to get the surrounding culture focused on what is tracked and trackable. Snowden has massively moved this on, but putting a web page in front of everyone is also moving it on.

There are no reasonable regulatory fixes to NSA/GCHQ/Russia/China, that are not supported and demanded by a sizeable majority of people.

Not sure how to get there, but claiming this is a hoax is a little unfair

devx• 13 years ago

Does this impact only sites hosted in EU? Or with a domain from an EU country?

albertoperdomo5• 13 years ago

The actual implementation of the laws depend on the countries, but they are based on the same EU directive.

AFAIK this applies to companies registered in those countries, or with an office there or targeting the market in those countries.

So, to make things more difficult, the German law implementation might be different from the Spanis implementation. If you are targeting both markets, you'd need to pay close attention to both.

ogig• 13 years ago

Mentioned in the article: Spanish business using Facebook pages could be non compliant to this law. Same with others using wordpress, blogger, tumblr and so on since tracking cookies are been installed without a previous user acceptance. Also note that the business is liable for this, not the hosting service provider.

I wonder how far hosting provider definition goes. If twitter is used in a company marketing strats, is it liable for the cookies installed by twitter? I don't see it different from the facebook pages cited example.

The only practical option given this is to stop using those providers.

Kiro2• 13 years ago

So if I'm outside of Spain I don't need to care about this?

camus• 13 years ago

if you are doing business anywhere in Europe you should.

Kiro2• 13 years ago

Care to elaborate? I thought the Cookie Law was dead.

nolanl• 13 years ago

The last place I worked was a Swiss organization that built web sites for the European Commission. Dealing with the EU cookies directive was an amazing waste of brain cells for everyone on the team.

For instance, were we allowed to ignore it because we were Swiss (non-EU)? If not, which version of the law were we required to comply with? For instance, the UK implementation of the law says that you can assume "implied" consent if the user ignores your popup altogether. However, the Dutch version of the law is much stricter - the user must click "I accept" before you can save any cookies. And the French version of the law allows for lots of exceptions, e.g. for setting the user's preferred language.

Plus, we needed a cookie just to store whether or not the user clicked "yes" or "no," so in effect we were forced to break the law no matter what we did. (The only alternative would be to show the "no" users the popup every time they came back to the site, since we were supposed to forget that they had even clicked "no"...)

So all in all, it was a huge mess. In the end we just copy-pasted a JQuery plugin from GitHub and chose the strictest setting. Now our site is uglier, it's more confusing to users, and we still have to cross our fingers that we didn't miss a corner case in Bulgaria or something.

gcb02• 13 years ago

Plus, we needed a cookie just to store whether or not the user clicked "yes" or "no," so in effect we were forced to break the law no matter what we did.

this means you didnt' waste too much brain cells after all.

if user clicks no, you either show it everytime, or set a session cookie, which is not supposed to be saved on disk per the specs. if the browser decide to save it on disk, it's their problem.

But if you set a no cookie. then it's the typical governemnt contractor. Going the extra mile to bill for the law, but completely ignoring the law purpose and benefits.

joyinsky• 13 years ago

Don't the have anyhing more important to do? like, e.g.(creating the 6M jobs they desesperately need)

Uchikoma• 13 years ago

How does one store that a user opted out of cookies?

adcuz• 13 years ago

This is a shambles.

smoyer• 13 years ago

My web-sites will say - "This site uses cookies ... If you agree, please leave."

Spain begins disciplinary proceedings against site for violating Cookie Law

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