Please kill this cookie monster to save Europe's websites

EDITORIAL: Visit any website and there's a good chance that it will send a cookie to your computer. But unless that cookie is essential, its delivery could become illegal under a strange new plan that has, very quietly, won EU support.

Cookies are small text files that websites send to visitors' computers. Websites struggle to recognise their users without them. When someone visits OUT-LAW.COM for the first time, our site endeavours to send that visitor's computer a cookie. We do this with some help from Google, which offers a free service called Google Analytics. The Google Analytics cookie is used to count our visitors, a measure of success that we find rather helpful. This is just one way in which we use cookies. It's impossible for us to argue, though, that that cookie is essential to fulfilling the visitor's purpose.

Under plans endorsed by the European Commission, the Council of Ministers and the European Parliament, we would have a choice: stop using Google Analytics or ask visitors for permission to send that cookie when they visit. Like an over-enthusiastic greeter, the latter approach requires us to welcome even casual passers-by with a "Hi, how are you today?" and an invitation to wear a visitor's badge.

Most websites use Google Analytics (including the site of the UK's privacy chief, at ico.gov.uk) or a similar traffic analysis tool, and that is just one use that sites make of cookies. We’re all subject to this requirement for prior consent – or so it seems. The trouble is, we don't know what the law really means. Nobody does, because the proposed law is ambiguous. (See the relevant sections or full text.)

There is a cookie law in Europe today. It comes from the Privacy and Electronic Communications Directive (11-page PDF), which says that sites using cookies must give visitors "clear and comprehensive information" about the purpose of the cookies. They must also offer visitors "the right to refuse" the use of cookies. That law was passed in 2002 and it is somewhat ambiguous – but in a way that allows for pragmatic interpretations.

The 2002 Directive did not say when or how the information had to be provided. It was implemented in the UK in a set of Regulations that parroted the Directive's ambiguous language. But our Information Commissioner, to his credit, took a pragmatic view. He published guidance (19-page PDF) that said it was acceptable to display the information in a privacy policy, asking only that "the policy should be clearly signposted at least on those pages where a user may enter a website." Usability survived, in the UK at least.