Good morning PTS! (PTS finally to provide (some) guidance on the use of cookies)


Almost five years following the introduction of the “cookie-law” in Swedish law, the Swedish Post and Telecom Authority (“PTS”)  is finally on its way to share its view about how website owners are expected to act in order to comply with the consent-requirement for use of cookies set forth in the Swedish Electronic Communications Act.

A cookie is a small piece of data that a website asks your browser to store on your computer or mobile device. The cookie allows the website to “remember” your actions or preferences over time. Most browsers support cookies, but users can set their browsers to decline them and can delete them whenever they like. Under European privacy law (the ePrivacy directive), prior informed consent is required for storage or for access to information stored on a user’s terminal equipment. This basically means that the users must be asked if they agree to cookies and similar technologies (e.g. web beacons, Flash cookies, etc.) before the site starts to use them.

For the consent to be valid, it must be informed, specific, freely given and must constitute a real indication of the individual’s wishes. Ever since the consent requirement was implemented in the 6th chapter of the Electronic Communications Act in July 2011, there has been an uncertainty as to how these requirements shall be complied with in practice.

Many initiatives have been taken in order to push acceptance for consent to be given via browser settings rather than by an activity in relation to the site owner. By way of example, in November 2011 IAB launched a form of best practice, a recommendation on the use of cookies.

PTS however, has kept a low profile, communicating an understanding “one size don’t fit all”-approach for the market players to decide on how to best handle the consent requirement for their websites. On February 11 2014, PTS communicated that it was to start a review of a number of “big” websites for the purpose of allowing for PTS to give a more clear guidance with regard to how information shall be provided and consents collected under the “cookie-law”. The review has so far taken PTS almost two years, but last week, as a part of the ongoing review, PTS reached a “preliminary” position in its view on collection of consent.

The “preliminary” position taken by PTS is that consent can indeed be provided via browser settings, provided that the user is informed about the use of cookies and is in full control over such use by browser settings. If this is not possible, consent must be collected beforehand.

PTS has not yet made any decision with regard to the websites reviewed. When they do, it will serve as a very useful source of interpretation of PTS:s “new cookie-policy” and what this means for website owners in practice. At least PTS has taken one step towards clarifying the authority’s expectations in relation to the cookie-law – not a day to late.

For further information, please contact Anna Forsebäck.

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