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If you run a website, you're required to inform users about any cookies on your site that collect personal information. While disclosure requirements in Australia aren't as strict as in some other countries, a cookie policy is still an important consideration for website owners.
This guide will explain what a cookie policy is, when you need one and what information that policy should include.
What's in this guide?
What is a cookie?
In this context, a cookie obviously isn't a tasty snack. Instead, the term refers to a small piece of data that a website sends to your web or mobile browser when you visit the site.
The main purpose of cookies is to improve your experience when you visit the same website again in the future. For example, cookies can remember your language and site preferences, ensure that items remain in your shopping cart, and track what pages you've previously visited.
However, cookies can also collect the personal information of site users, which is why there are requirements in place for website owners to inform users about what cookies are on their site.
What is a cookie policy?
A cookie policy outlines the use of cookies on your website. It allows you to disclose to your users what cookies are on your site, what information they track and why.
In many cases, it's a requirement for website owners under the Privacy Act.
When should I use a cookie policy?
If your website uses cookies that collect personal information, you'll need a cookie policy.
In Australia, the collection of personal information is governed by the Australian Privacy Principles, which are in turn part of the Privacy Act. While these principles don't make any specific mention of cookies, they do outline your requirements for notifying users about the collection of personal information. Check whether your company or organisation is required to comply with the Australian Privacy Principles to determine your notification requirements.
It's worth noting that you may also be required to comply with the General Data Protection Regulation (GDPR) that came into effect in the EU and UK in 2018. If your business targets EU and UK users, you may need to add a pop-up to your site that allows visitors from those countries to expressly accept or reject the use of cookies.
Cookie policy vs privacy policy
A cookie policy is often included as part of a company or organisation's broader privacy policy. According to the Office of the Australian Information Commissioner, a privacy policy is "a statement that explains in simple language how an organisation or agency handles your personal information".
It's a legal requirement for any organisation or agency covered by the Privacy Act and includes:
- What kind of information is collected and stored
- How and why personal information is collected
- Where it is stored
- How your personal information will be used and disclosed
- How to make a complaint if you think your personal information has been misused
What does a cookie policy include and not include?
A cookie policy provides the following information to website users:
- What cookies are active on your website
- What types of cookies you use, including first-party and third-party cookies
- What information those cookies collect
- Why your website uses cookies
- How the information is stored
Do I need a lawyer for a cookie policy?
Seeking legal advice when creating a cookie policy can help ensure that your website is fully compliant.
The terms and conditions contained in the Australian Privacy Principles are quite complicated. For example, they specify the difference between personal information and sensitive information — if your cookies collect the latter, you must get the consent of users first. There's also a distinction between express and implied consent, as outlined by the Office of the Australian Information Commissioner.
Next, you may need to consider whether your website will need to comply with the EU's ePrivacy Directive or GDPR laws. If you do, the disclosure requirements are different than they are for Australian website users, so you may want to speak to a lawyer for advice tailored to your business.
Get access to cookie policy templates online
Does your company belong in this list?
How do I write a cookie policy?
There are a couple of options to choose from when creating a cookie policy. The first is to create the policy yourself by studying the relevant requirements to work out what information your cookie policy must contain. You can also access a range of cookie policy templates and generators online, some for free and some for a cost. However, you'll need to make sure that any policy you generate using these online tools is fully compliant with all relevant regulations.
The second option is to seek legal advice regarding your cookie policy obligations. This will help you work out if you need to create a policy, what details that policy must contain, and whether you'll also need to satisfy European GDPR legislation.
Where to get cookie policy templates
There are several websites that offer free or paid cookie and privacy policy templates to users. Some of the options include:
- Lawpath. This cookie policy is designed to comply with Australian privacy legislation, but Lawpath warns that it may not comply with the EU GDPR. You'll need to sign up for a free account in order to modify the template.
- Wonder.Legal. This free cookie policy is designed to comply with Australian law and can be modified by answering questions online. However, if you need to add a cookie consent pop-up to comply with EU/UK law, this must be done separately.
- LegalVision. If you're looking to create a cookie policy as part of a wider privacy policy for your website, LegalVision offers a privacy policy template that you can buy online.
- Termly. Termly offers a Cookie Consent Manager that scans your website for cookies and generates a cookie policy to comply with the GDPR and ePrivacy Directive.
However, you'll need to make sure that any cookie policy generator or template you use satisfies the Australian Privacy Principles and, in some cases, overseas regulations. If you're in any doubt, seek legal advice.
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