The ICO made last-minute changes to its guidance on how to comply with the new cookie law in order to clarify the following points with regard to implied consent:
- Implied consent is a valid form of consent and can be used in the context of compliance with the revised rules on cookies;
- If you are relying on implied consent you need to be satisfied that your users understand that their actions will result in cookies being set. Without this understanding you do not have their informed consent;
- In some circumstances, for example where you are collecting sensitive personal data such as information about an identifiable individual’s health, data protection law might require you to obtain explicit consent.