On 30 March this year, the Spanish Government passed Royal Decree 13/2012 (hereinafter "Royal Decree"), whereby the Amended ePrivacy Directive (Directive 2002/58/CE amended by Directive 2009/136/CE) was implemented, introducing into Spanish law the European regulation concerning cookies.

The term "cookies" refers to any hidden data exchanged between the web user and the web server, which is stored in the hard drive of the user's computer. As mentioned in the Preamble to the Royal Decree, such devices could not just facilitate the web browsing but may also be used to disclose private information about the user. Therefore, the purpose of the Royal Decree is to ensure that users are adequately informed and provided with mechanisms that appropriately safeguard their privacy.
The Royal Decree amended article 22.2 of Law 34/2002 on Information Society Services and Ecommerce (hereinafter "LSSICE"), stipulating two alternative means of obtaining valid consent from the service recipient that would allow the use of cookies by the service provider: I) prior, "opt-in" consent once the user has been properly and completely informed about cookies, and II) consent expressed by the settings of the browser or other application, whenever it is possible and efficient to do so.
Regarding the first means of obtaining consent, article 22.2 LSSICE was modified to have the same requirements as article 5 (3) of the Amended ePrivacy Directive: prior,  "opt-in" consent from the service recipient, after they have been given clear and complete information as to the use of cookies and, particularly, to the aims of data processing. The prior version of article 22.2 LSSICE required "opt out" consent.
Regarding II), the Royal Decree includes the same criteria contained in Recital 66 of the Amended ePrivacy Directive, except for the requirement of an "affirmative action" in order to achieve valid consent through browser settings. This additional requirement was suggested by the Article 29 Data Protection Working Party in its Opinion 2/2010.
Spain has fully implemented the wording of the new EU regulation on cookies but imposes more restrictive criteria concerning users' consent expressed by browser settings or equivalent settings on other applications. Spain follows the criteria of the Working Party in this regard in strengthening of the "opt-in" consent requirement.

For more information on the above, please contact:

Javier Fernandez-Samaniego (contact)