As if to reinforce the point the ICO, which uses the website analytics system Google Analytics, has placed a banner on the top of pages on its website (www.ico.gov.uk) requesting consent from users to permit non essential cookies including those used by Google Analytics.
There is a lot of debate about the whys and wherefores of this legislation which is covered elsewhere. This analysis is about the implications of this legislation on cookie based website analytics systems.
Attempts, such as the ICO’s, in trying to make cookie based website analytics systems compliant with the regulations end up going nowhere.
In order to use a cookie based web analytics system one needs to gain the positive consent of the user. The regulations are quite explicit in that one cannot assume consent until a positive opt in is made. Unless this opt in is obtained it is against UK law for a website to use a cookie in the furtherance of website analytics.
So what is the problem in adding an opt in mechanism for user when using cookie based website analytics systems? The problem is that website analytics systems measure activity and user interaction on the website. For the information to be of use it needs to be reasonably accurate. If, however, it is only activated when a user consents to its use then it is not measuring website activity, it is in fact measuring website activity only of those who consent to opt in. This is not the same.
Website managers will be missing activity from their cookie based website analytics reports from those users who do not give their consent to cookie usage. They will be better off moving to a non cookie based website analytics system.
IP address and user agent is a different technique for website analytics and there is a difference between what it and cookie base methods report. We will leave that for another discussion but nevertheless IP address and user agent is still accurate enough for the Audit Bureau of Circulations to permit its use in website analytics systems it allows to be used for auditing website activity.
Implementation is no different to most cookie based systems as both usually require a tag needs to be placed on each website page.
To summarise, the solution to the dilemma posed to website managers by the new regulations and their cookie base analytics systems is clear. In order to comply and still have reasonably accurate website analytics they should refrain from using an opt in banner in combination with their cookie based website analytics system. Instead they should use an IP and user agent based website analytics system. Do this and you will have a solution to your problem.
By John Harrison
About the author
John Harrison is CEO of Maxsi Limited (www.maxsi.com). John founded Maxsi over ten years ago. Since then it has developed the eVisit Analyst
(www.evisitanalyst.com) range of website analytics systems including IP Address and user agent variants. Its products are accredited by the Audit Bureau of Circulation.
 ‘Changes to the rules on using cookies and similar technologies for
storing information’, Information Commissioner’s Office, 9 May 2011
 ‘Research into consumer understanding and management of internet
cookies and the potential impact of the EU Electronic Communications Framework Report’, Department for Culture, Media & Sport April 2011
 ‘JICWEBS Reporting Standards Website Traffic’, ABC, Version 2 2011,
Issued May 2011