The Royal Decree-Law 13/2012, 30 March, which amended several articles of the Law 34/2002, of 11 July, services of the society of the information and of electronic commerce, was published in the Official Gazette of 31 March 2012, in order to adapt its regime to the new wording of Directive 2009/136/EC, to the Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector.

The aforementioned Royal Decree-Law 13/2012 came into force on April 4th, 2012, and its article 4 includes the modification of article 22.2 of the Law 34/2002, of 11 July, of Services of the society of information and electronic commerce concerning cookies.

The new wording of article 22.2 requires as a novelty with respect to the previous, the consent of the recipient of a service for the use of devices for storage and retrieval of data on their computer terminals (i.e. cookies) by the providers of such services. Previously, it is mandatory that service poviders still facilitate clear and complete information on the use of these devices including the purposes of the treatment of the data obtained.

The new article 22.2 includes a new second paragraph specifying that when it is technically possible and effective, the consent of the recipient to accept the treatment of the data may be supplied by using the appropriate parameters of the browser or other applications. In order for this procedure to be valid, the user must proceed with the configuration of these parameters, allowing cookies at the time of installation or update of the browser through an express action wih this purpose.

The question that arises now is how the provider must obtain the consent of the recipient of a service for the use of cookies, since it is not specified that it should be an explicit consent. In that regard, we understand that in theoryservice websites would comply with this rule by including in the legal noice on their website, in a specific section for it, or in the general conditions of contracting of the service, the warning of the use of cookies in the website, informing about the purposes of the treatment of the data obtained.

In the case of the Internet browsers is different as the Law requires that the recipient of the service expressly perform an action, at the time of the installation or upgrade of the browser, allowing the service provider to use t cookies.