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Spotlight

CONTENTS 1–2 Are your Cookies Fully Compliant? 3 Expanding Expertise 4 Legal Update 5 Client Focus – Shooting Star CHASE

Working with the Not-for-Profit Sector Autumn 2012

Are your Cookies Fully Compliant? Whilst browsing the internet since May this year, you will have been inundated with pop-ups and information about “cookies”. This is because new law came into force in May 2011 which gave website operators a year to ensure that they set up mechanisms for visitors to consent to cookies being used. Charities are not exempt from this, and hopefully if you have a website you are already on top of this. If not, and for those curious about cookies generally, this article explains briefly what cookies are, and what the new law requires. Cookies are a text file, that contains small amounts of information that are downloaded onto a user’s computer or device when accessing a website. When the user next accesses a website that recognises that cookie, the information contained within it is sent to the website operator.

Strictly Necessary Cookies: These are an exemption from the requirement to obtain consent, and are cookies that are strictly necessary for the carrying out of a function requested by the user. These must be essential, rather than reasonably required, and only relate to the provision of an “information society service”, which is a service that is requested by the user, and is provided

Websites themselves are static, and not capable of “remembering”

for remuneration at a distance, by means of electronic equipment

anything. Cookies therefore enable any “choices” made by a user

that is used for the storing and processing of data. The obvious

(such as language preference) to be applied throughout the pages

example here is the shopping basket – in order to provide the

of a particular website, and on subsequent visits.

service of purchasing products online, which the user has requested

Types of Cookie Session Cookies: Only active whilst a user is browsing the internet, and are removed once the browser is shut down at the end of a session.

through placing products in the basket, there must be storage of the selected items and other relevant details such as delivery address. The storage of that information is essential to the service being provided, and therefore consent is not required to store cookies that

Persistent Cookies: These remain on a computer or device after the

relate to that process. To be strictly necessary, they will need to be

browser session has ended, and become active again when a relevant

kept only as long as essential, so they are likely to be session cookies,

website is next accessed.

although persistent cookies can still be strictly necessary in certain

First Party Cookies: Any cookies set up, used and accessed only by

circumstances.

the website operator.

Performance Cookies: These are cookies that collect information

Third Party Cookies: Cookies that are set up by someone other than

about the website itself, rather than anything personal, such as what

the website operator, such as an advertising banner.

pages are visited, any error messages that come up etc. They are s

used for analysis of performance, and are sometimes referred to as


Are your Cookies Fully Compliant? – continued

s

analytical cookies. These cookies are stored, and then accessed by the

or cookies to be used.

person collecting the data, so may be first or third party.

It is important that it is made clear to the user what they are

Functionality Cookies: These allow a website to be used effectively,

consenting to, and given that research has shown that the average

such as remembering a language preference, detecting whether

users understanding of cookies is low, this needs to be explained in

an additional service such as an online tutorial has been offered, or

a way that is accessible, using clear language.

fulfilling a request such a comment submission on a news item. The

The level of detail given, and whether you need to ensure that

information stored in the cookie may be anonymised, and will not be used to track user activity on other websites.

information has been read before consent is obtained will depend upon the type of cookie. Where there is a greater infringement of

Targeted/Advertising Cookies: These are the cookies that allow

privacy (at the targeting end of the spectrum) more care must be

advertising companies to tailor the advertising banners that you see

taken that informed consent is given, and reliance on continued use

on websites to your choices, but are also used to ensure that there is a

of the website is unlikely to be sufficient.

limit to the number of times that you see an advert, and to measure

Once consent has been given, it does not have to be given every time

the effectiveness of a campaign. Typically, a third party will place the cookie onto a computer or device when a user accesses a particular site, and will have the site owners permission to do this. The cookie then sends the information collected back to the third party, and this is used to target advertising – either to the user or more generally in picking up on trends.

Are you compliant?

a user visits a site, but if there are any significant changes to the cookies, new consent or an update to users may be required. There must also be a means of withdrawing consent, usually set out in the website terms and conditions, and once a user has withdrawn consent, you must have a method of removing the cookies. Where third party cookies are concerned, the regulations themselves are silent as to who is responsible for obtaining the consent, but since

To determine compliance with the legislation, you need to establish

it is the website operator who is most likely to receive complaints,

what cookies are on your website, and their functions.

they should be proactive in obtaining consents. It is likely that there

For each cookie, you need to identify:

will be terms to cover this in any agreement between the third party

1. Its purpose on the website;

and the website operator, and if not, the parties should consider

2. The information that it provides;

making it clear who is responsible for the obtaining of the consents

3. The type of cookie –

necessary to use the cookies.

a. persistent or session – and if persistent, how long is the information kept, b. first or third party – and if third – who is it placing the information and what are they doing with it, c. strictly necessary? Are any cookies essential to the operation of the website as set out above? d. Performance, functional or targeted/advertising? 4. Whether your current privacy policy covers the use of the cookie; and 5. Whether there are any current means of obtaining consent to that cookie.

Consent

Conclusions Cookies are little pockets of data that are stored on a computer or device when a user has accessed the internet, which send information to the website operator or a third party. In the vast majority of cases, websites that utilise cookies must now have the consent of the user before they are used. How consent is obtained will depend upon the type of cookie, but it is important that all charity websites can show that they are compliant with this new law. If you have further questions about this, please get in touch with your usual contact at Stone King, or Brian Miller, our new expert in this area, whose contact details appear on the next page.

Consent is the key issue under the new law, and how it is obtained is to be decided by the website operator or cookie owner. Any consent obtained must be freely given, and should show a specific and informed indication that the user is content for the particular cookie

Vicki Bowles Barrister VickiBowles@stoneking.co.uk


Expanding Expertise Stone King are pleased to announce

◆◆ how cookies are treated;

the arrival of Brian Miller to the team

◆◆ whether persons with disabilities are treated appropriately

of lawyers we have available to help our charity clients. Brian has a wide range of experience in IT, commerce, e-commerce, procurement, data protection, information management, intellectual property, and computer games. Brian is currently offering a number of legal audits in the areas of IT and information management. Included in this offering is:

1. Data Protection Audit

and legally; ◆◆ whether it has suitable terms of use and a privacy policy; ◆◆ whether the content, data (particularly personal data) and code

is secure; and ◆◆ if required (as an add-on), whether your organisation is

achieving the desired traffic through effective use of key words and other optimisation techniques (Website Optimisation Audit).

This audit helps you discover:

4. F reedom of Information, Human Rights and Governance

◆◆ to what extent your organisation has good data protection

We examine what policies your organisation has in place for

governance processes in place; ◆◆ what level of training and awareness there is around data

protection issues; ◆◆ how records are managed; ◆◆ how secure the personal data of individuals in your

organisation is; and ◆◆ how requests for personal data are handled.

2. Intellectual Property Audit As part of this audit, we review the following areas of your intellectual property to assess ownership rights and requirements: ◆◆ trade mark portfolio and asset ownership; ◆◆ website content, literature and structure, including copyright

ownership; ◆◆ domain name ownership and control; ◆◆ ownership of designs and design rights; and ◆◆ inventions and patents.

3. Website Audit We look at the content and code on your organisation’s website and seek to ascertain: ◆◆ whether your organisation owns it; ◆◆ whether it has control over its hosting;

dealing with requests for information and whether they comply with the Freedom of Information and Human Rights Acts and the Environmental Information Regulations. We also look at what processes your organisation has in place for governance and management of risk, and how we might help you improve them (should this be necessary).

5. IT Security Audit This audit will help to determine: ◆◆ whether your systems are secure; ◆◆ whether you are compliant to certain standards, such as

ISO27001; ◆◆ what policies you have in place to deal with security of

information; and ◆◆ whether they are adequate.

Should you be interested in any of the above, please contact Brian Miller on 020 7324 1523 or BrianMiller@stoneking.co.uk.


Legal Update Loss of VAT Relief on Listed Buildings

Renewable Heat Incentive (RHI) Scheme

The Renewable Heat Incentive (RHI) has been introduced to focus attention on renewable energy such as biomass and away from fossil fuels such as oil. Biomass fuels include wood pellet, woodchip, logs, grain, cereals, and energy crops. The government has pledged to provide a continuous income Despite the government u-turn on the controversial proposal for a cap on tax reliefs, it appears that no such change is likely for the proposed loss of the zero rate of VAT currently applicable to ‘alterations’ of listed buildings. The amendment is due to come into force on the 1st October, and will mean that building materials and construction services supplied in the course of an approved alteration to a listed building will now have the standard rate of VAT (currently 20%)

stream for 20 years to any organisation that installs an eligible renewable heating system to help enable the UK to meet its target to generate 15% of energy from renewable sources by 2020. The RHI scheme makes a payment under a tariff system dependant on the type of technology used along with the amount of kW’s consumed and is intended to create long term support for renewable heat technologies like heat pumps, biomass boilers and solar thermal panels through financial incentives.

applied.

If you think that your charity might benefit from this, please

For further assistance please contact Sally McFadden 01225 326794 smf@stoneking.co.uk

contact Sally McFadden, details as before.

New Pensions Rules From October, new rules surrounding employees enrolment in qualifying pension schemes will be rolled out. The roll out is roughly based on the number of employees, but if the new rules apply, you will be contacted 6-12 months before they need to be implemented. The changes basically require employers to automatically enrol eligible employees into a qualifying pension scheme. Whilst employees should be given the option to opt out, employers will have to ensure that this is not encouraged in any way.

New CRB Rules

Contributions by the employer must be at least 3% of the

Some changes to the CRB system came into force on the 10th

workers earnings, and the total combined contributions must

September, including a new definition of “regulated activity”.

be at least 8 %.

Check out www.stoneking.co.uk for more information.


Client Focus – Shooting Star CHASE Shooting Star CHASE began life as two separate children’s

or another family member has a crisis, we are now able to

hospice charities: The Shooting Star Children’s Hospice and

respond to all of these multiple requests.

CHASE hospice care for children. On 1 April 2011 these two charities merged to become Shooting Star CHASE. As one charity, Shooting Star CHASE now cares for over 600 families living all across western London, Surrey and West Sussex who have a child or teenager not expected to reach their nineteenth birthday. Families receive the care we provide free of charge, 365 days a year. We provide this care at our two children’s hospices, Christopher’s and Shooting Star House; in the family home with our ‘Hospice at Home’ service; and in the local community. When we made the decision to come together, we said that it would enable us to become: More responsive

More sustainable We have raised the money needed to keep our promise to families. We have always been clear that the merger’s core purpose was never about cutting costs but to provide better care for more families. However, Shooting Star Chase is on track to raise the £8.5m it needs to keep its services going and it has also made more than £275,000 in savings by having just one senior management team and one fundraising office. “We’ve had a great first year but we still have a long way to go. There are big challenges ahead. We need to review how we balance our emergency response care versus a planned service and the economy climate remains tough. We will continue to do everything we can to ensure that

In the last year, we have been able to offer round the clock

these families get the best care possible, where they need it,

care to more families with a child at the end of life in their

in the way they need it most. We have come a long way, but

own home.

we still need ongoing support so we can care for families for

Our pioneering symptom management support, led by only

as long as they need us.”

one of seven Consultant’s in Paediatric Palliative Care in the

David King, chief executive of Shooting Star Chase

country has ensured that children can be cared for at home

For more information, visit shootingstarchase.org.uk.

by the Hospice at Home team whether they are dependent on ventilators for breathing, require feeding by tubes, have complex medication regimes, have difficult seizures to manage or need the highest level of symptom control to ensure comfort at the end of their lives. In July 2012 we will begin work to extend the Hospice at Home team to provide the most comprehensive, inclusive and effective home support of any children’s hospice service in the country. More flexible We have brought together highly skilled care professionals to help us specialise in providing the best care to the sickest children. When two to three children become very sick at once and need urgent care or care at the end of their lives,


Your Contacts Charity: Michael King Partner Jonathan Burchfield Partner Robert Meakin Partner Ann Phillips Partner Alexandra Whittaker Associate Hannah Kubie Associate Tom Murdoch Associate Vicki Bowles Barrister Sarah Clune Solicitor Darren Hooker Solicitor Reema Mathur Solicitor Emer Hughes Trainee Matthew Watson Trainee

Corporate & Commercial: Roy Butler Partner Brian Miller Senior Associate Caroline Leviss Associate

Charity Legacy Team: Jonathan Burchfield Partner Robert Meakin Partner Paul Sutton Partner

Education: Roger Inman Partner Graham Burns Partner Stephen Ravenscroft Partner John Clarke Partner Richard Gold Consultant Geoffrey Davies Consultant Laura Berman Senior Associate Michael Brotherton Senior Associate Kate Grimley Evans Solicitor Nicola Berry Solicitor Lydia Brookes Solicitor Ciara Campfield Solicitor Laura Giles Solicitor Venetia Phipps Trainee Alison Pearce Trainee

Child Protection: Steven Greenwood Partner Commercial Property: Hugh Pearce Partner Stephanie Howarth Partner Hugo Greer-Walker Partner Catherine Sanderson Senior Associate Andrew Small Senior Associate Joanne Burton Associate Sally McFadden Associate Tamsin Simmonds Associate Daisy Barnett Solicitor Chris Sharpe Solicitor Kathryn Williams Trainee

Dispute Resolution: Paul Sutton Partner Antony Pidgeon Associate Alice Wood Solicitor Jon Moore Solicitor Tom Johnson Trainee Health & Safety: Andrew Banks Partner David Milton Associate Solicitor

Employment: Nick Watson Partner Peter Woodhouse Partner Jean Boyle Associate Tamsin Wilkinson Associate Victoria Blake HR Consultant Sarah Turner HR Advisor Amy Gordon Trainee Jess Holifield Trainee Housing: Geraldine Winkler Legal Executive Trusts and Taxation: Andrew Mortimer Partner Alison Allen Partner David Ainslie Partner Charles Hayward Partner Dan Harris Solicitor Kerry Rogers Associate Rachel Curtis Associate Solicitor Kathryn Layzell Associate Solicitor

Stone King LLP 13 Queen Square Bath BA1 2HJ Tel. 01225 337599 Fax. 01225 335437 16 St John’s Lane London EC1M 4BS Tel. 020 7796 1007 Fax. 020 7796 1017 Wellington House East Road Cambridge CB1 1BH Tel. 01223 451070 Fax. 01223 451100 New Hall Market Place Melksham Wiltshire SN12 6EX Tel. 01225 337599 Fax. 01225 335437

www.stoneking.co.uk email: charity@stoneking.co.uk

Š Stone King LLP 09/2012

The Spotlight deals with some current legal topics. It should not be used as an alternative to specific legal advice on the individual circumstances of a particular problem. Stone King LLP - registered limited liability partnership no OC315280, registered office 13 Queen Square, Bath BA1 2HJ


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