What are cookies? Learn how they work on your website here!

Online businesses want to make data-driven decisions. That’s why they need to collect data about users’ behavior on their website, where do their users come from, in what demographic groups they belong to, and so on. That’s where cookies come in handy.

Cookies are all over the internet. They allow websites to remember your language preferences, the items in your shopping cart, track your browsing on the internet, what videos you like to watch on Youtube, and help them recommend better videos, and so on. 

They can be useful, but at a price. That price is the collection of personal data and the related risks.

Due to the possible abuse of personal data, many governments worldwide have introduced legislation for the regulation of the use of cookies - the most important and comprehensive being the EU cookie laws.

Businesses must comply with these laws to avoid penalties as well as losing trust from customers. That’s why it is very important to understand:

• What are cookies
• How do cookies work
• What types of cookies there are
• What do the data protection laws require from your business regarding your use of cookies, and
• How to comply with the legal requirements easily, so that you could use cookies and other types of trackers and collect data lawfully without the risk to get fined.

What are cookies?

Cookies are small textual files that a website or an app sends to the user’s device to track something and collect data about it. When these files reach the user’s device, they can collect certain categories of data for which that specific cookie has been designed to collect.

For example, an analytics cookie sent to a user’s device to track the web pages they visit on the website will collect data on that user’s browsing behavior on the website. If the cookie was designed to collect data that identifies the user by their demographic characteristics, such as country, age, gender, and others, then it will collect that data, too.

Basically, they will track what you tell them to track.

In many places on the internet, cookies are called HTTP cookies. There is no difference between cookies and HTTP cookies.

What types of website cookies there are?

You can classify tracking cookies depending on various criteria. The most common criteria include:

• Duration
• Purpose
• Provenance
  

Duration

The duration criteria classify cookies based on how long they stay in the users’ device. They can be:

• Session cookies. Session cookies last only for one session. They expire at the moment the user closes the browser. They collect data produced only between the moment of injecting the cookies till the closing of the browser.
• Persistent cookies. Persistent cookies, on the other hand, stay in the device until the user deletes them. In some cases, these cookies can expire by themselves if they have an expiry date encoded in the cookie.
  

Provenance

The provenance criteria classify cookies based on where they come from. They can be first-party cookies and third-party cookies.

• First-party cookies are stored on your website and are injected into your users’ devices as soon as they consent to it.
• Third-party cookies are the cookies produced by third-party tools that you use for some processing purposes. These third-party tools are connected to your website, but the cookies are not stored on your website. Instead, they go to the user’s device from a third-party website. These are usually analytic cookies, social media cookies, and similar ones.

However, nowadays there are cookies that cannot be easily placed in one of these two groups. A good example of this is Facebook tracking cookies - produced by Facebook but stored on your website. Although they have been created by a third party (Facebook) and you can extract data collected by them only by using Facebook marketing tools, they are stored on your website like first-party cookies.

Purpose

Cookies differ based on the purpose they serve to your business. 

The most general classification based on purpose is on essential and non-essential cookies.

The essential cookies are necessary for the proper functioning of the website. They have to be here to ensure that you can use the website or the app at all.

Non-essential cookies serve purposes that are not necessary for the functioning of the website. All they do is help businesses collect the data they need.

Non-essential cookies can be:

• Analytics cookies. These cookies collect analytics data related to the use of your websites, such as Google Analytics, Mixpanel, Hotjar, and others. They often track user’s behavior based on their IP address. Since the IP address is personal data, you need to comply with the laws regulating the collection of such data.
• Preferences cookies. These are the cookies that remember user’s choices on your website or app. They remember the font size, preferred language, dark or light theme, etc.
• Marketing cookies. These include the marketing and advertising cookies by Facebook, Google, Pinterest, Quora, Twitter, and other ad platforms. They all use cookies or similar tracking technologies to track user’s behavior and to provide businesses with advertising analytics based on that tracking.

There are many other types of cookies based on purpose - as many as there are purposes - but these are the most common ones.

This classification is the most important from a legal point of view. The granularity of cookie consent required by the EU cookie laws such as the ePrivacy Directive and the GDPR fits the classification based on purpose. See GDPR cookie consent examples.

What does the EU cookie law require?

EU cookie laws aim to protect personal data. Therefore, they regulate the use of cookies that collect data. This means that not all cookies are under the scope of these laws. However, if a cookie collects at least a single piece of personal information from a single user, then you must comply with the laws.

EU cookie laws require you to obtain explicit user’s consent for the use of cookies. Without consent, you must not use cookies. If you use them without consent, you violate the law and will be fined.

However, not all consent is created equal. You need to request and obtain consent the right way. Consents collected against the GDPR are not valid and the use of cookies upon such collection is unlawful and a reason to get in trouble with the GDPR.

How to obtain consent?

According to the ePrivacy Directive, businesses need to obtain explicit consent from users before using cookies. That was about enough to comply with EU cookie laws from the introduction of the ePrivacy Directive in 2002 till coming into effect of the GDPR (General Data Protection Regulation) in 2018.

Then, the requirements have become stricter. According to the GDPR, requirements are more detailed. They are prescribed in detail in the law and further tightened by the Planet49 decision of the Court of Justice of the EU and the EDPB guidelines on obtaining consent.

Consent has to be:

• Given freely. You have to allow users to give their consent freely. You must not coerce users into giving consent and should allow them to withdraw it without any consequences whatsoever. 
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• Specific. Consent is specific when obtained for each specific purpose of processing.
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• Informed. The consent is informed if you have informed users about why and what data you collect. This information is usually contained in the privacy policy, therefore a privacy policy would be enough to meet this requirement.
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• Unambiguous. This requirement means that the consent is valid only if the user consents by their affirmative action.
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Ensure that the checkboxes or toggles for giving consent for each specific purpose are not pre-checked. Planet49 was fined by the data protection authority because they had the checkboxes pre-checked.

• DO NOT. Some websites’ cookie banners’ text is: “By browsing this website you agree to the use of cookies”. This is unlawful because it is implied consent, not explicit. It is not a valid way to obtain consent and does not allow you to use any cookies because the user is not provided with a means to accept or reject cookies.

Also, do not pre-check checkboxes for giving consent for each specific purpose.

• Easily withdrawn. GDPR requires businesses to allow users to withdraw the previously given consent as easily as it has been given. This doesn’t make obtaining the consent invalid but is a violation of the GDPR.
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Do other countries have cookie laws similar to the EU cookie laws?

Yes, there are many countries all over the world that follow the example of the GDPR and the ePrivacy Directive. As a result, many of them require businesses to obtain explicit user consent before using cookies.

However, not all of them have so strict requirements for obtaining valid consent. Therefore, compliance with one law doesn’t mean compliance with all the other laws that require it.

You have to make your own due diligence to make sure that you are aware of the particular legal requirements in your specific situation.

How to comply with the EU cookie laws?

You need to:

• Block all the cookies before obtaining consent except for the essential cookies
• Request explicit cookie consent from users by a cookie banner
• The cookie banner text need to explain to users why you collect data, what you collect, with whom you share it, and other information, or simply provide them with a link to your privacy policy where they can read all the information
• The cookie banner needs to allow users to take affirmative action for giving cookie consent
• The cookie banner also needs the allow users to decline cookies
• You must not protect the website content with a cookie wall
• You must not bundle the cookie consent with the Terms and Conditions
• You need to request consent for each specific processing purpose
• The checkboxes, toggles, or other mechanisms for giving consent for each specific purpose must be set off by default, and the user should be allowed to check them out or turn them on to give consent through affirmative action
• Do not assume that browsing the website means consent
• Keep records of all the consent responses
• Allow users to withdraw consent without a hassle, as easily as they had given it.

Secure Privacy’s cookie solution has embedded the EU cookie laws - the GDPR and the ePrivacy Directive - in itself. 

It is a “prior consent” solution that allows you to block your essential cookies before obtaining explicit user consent according to the law.

The rules on obtaining consent are also embedded into the solution. The checkboxes will remain unchecked, all consents will be securely stored, and the users could withdraw consent easily. Just as the EU cookie laws require.