On February 10th, 2021, member states agreed on a negotiating mandate for the Council on the e-privacy regulation. These updated ‘ePrivacy’ rules will define cases in which service providers are allowed to process electronic communications data or have access to data stored on end-users’ devices. The agreement allows the Portuguese presidency to start talks with the European Parliament on the final text (trilogue negotiations).
The draft ePrivacy regulation will repeal the existing ePrivacy directive. As lex specialis to the general data protection regulation (GDPR), it will particularise and complement the GDPR. For example, in contrast to the GDPR, many ePrivacy provisions will apply to both natural and legal persons.
Under the Council mandate, the regulation will cover electronic communications content transmitted using publicly available services and networks, and metadata related to the communication. Metadata includes, for example, information on location and the time and recipient of communication. It is considered potentially as sensitive as the content.
To ensure full protection of privacy rights and to promote a trusted and secure Internet of Things, the rules will also cover machine-to-machine data transmitted via a public network.
The rules will apply when end-users are in the EU. This also covers cases where the processing takes place outside the EU or the service provider is established or located outside the EU.
As a main rule, electronic communications data will be confidential. Any interference, including listening to, monitoring and processing of data by anyone other than the end-user will be prohibited, except when permitted by the ePrivacy regulation.
Permitted processing of electronic communications data without the consent of the user includes, for example, ensuring the integrity of communications services, checking for the presence of malware or viruses, or cases where the service provider is bound by EU or member states’ law for the prosecution of criminal offences or prevention of threats to public security.
Metadata may be processed for instance for billing, or for detecting or stopping fraudulent use. With the user’s consent, service providers could, for example, use metadata to display traffic movements to help public authorities and transport operators to develop new infrastructure where it is most needed. Metadata may also be processed to protect users’ vital interests, including for monitoring epidemics and their spread or in humanitarian emergencies, in particular natural and man-made disasters.
In certain cases, providers of electronic communications networks and services may process metadata for a purpose other than that for which it was collected, even when this is not based on the user’s consent or certain provisions on legislative measures under EU or member state law. This processing for another purpose must be compatible with the initial purpose, and strong specific safeguards apply to it.
As the user’s terminal equipment, including both hardware and software, may store highly personal information, such as photos and contact lists, the use of processing and storage capabilities and the collection of information from the device will only be allowed with the user’s consent or for other specific transparent purposes laid down in the regulation.
The end-user should have a genuine choice on whether to accept cookies or similar identifiers. Making access to a website dependent on consent to the use of cookies for additional purposes as an alternative to a paywall will be allowed if the user is able to choose between that offer and an equivalent offer by the same provider that does not involve consenting to cookies. To avoid cookie consent fatigue, an end-user will be able to give consent to the use of certain types of cookies by whitelisting one or several providers in their browser settings. Software providers will be encouraged to make it easy for users to set up and amend whitelists on their browsers and withdraw consent at any moment.
The text also includes rules online identification, public directories, and unsolicited and direct marketing.
With the adaptation of the Council mandate, the Council and the European Parliament will now negotiate the terms of the final text. When adopted, the regulation would enter into force 20 days after its publication in the EU Official Journal and would start to apply two years later.
Click here to see the Council common position mandate adopted.
Source: FEBIS, Council of the European Union
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