Draft E-Privacy Regulation Released

On January 10, 2017 the European Commission released the draft E-Privacy Regulation. This regulation should replace the current E-privacy directive 2002/58/EC relating to privacy of electronic communication (cookies, direct marketing consent etc.)

According to the Commission, the new draft will increase the protection of people’s private life and open up new opportunities for business. The main change should be as follows:

• New players:  the current ePrivacy Directive only applies to traditional telecoms operators. Privacy rules will now also cover new providers of electronic communications services, such as WhatsApp, Facebook Messenger, Skype, Gmail, iMessage, or Viber.

• Simpler rules on cookies: The so called “cookie provision”, which has resulted in an overload of consent requests for internet users, will be streamlined. New rules will allow users to be more in control of their settings, providing an easy way to accept or refuse the tracking of cookies and other identifiers in case of privacy risks. The proposal clarifies that no consent is needed for non-privacy intrusive cookies improving internet experience (e.g. to remember shopping cart history). Cookies set by a visited website counting the number of visitors to that website will no longer require consent.

• Communications content and metadata: Privacy will be guaranteed for both content and metadata derived from electronic communications (e.g. time of a call and location). Both have a high privacy component and, under the proposed rules, will need to be anonymised or deleted if users have not given their consent, unless the data is required for instance for billing purposes.

• New business opportunities: Provided users has given their consent, traditional telecoms operators will have more opportunities to use data and provide additional services. For example, they could produce heat maps indicating the presence of individuals to help public authorities and transport companies when developing new infrastructure projects.

• Protection against spam: The proposal bans unsolicited electronic communication by any means, e.g. by emails, SMS and in principle also by phone calls if users have not given their consent. Member States may opt for a solution that gives consumers the right to object to the reception of voice-to-voice marketing calls, for example by registering their number on a do-not-call list. Marketing callers will need to display their phone number or use a special pre-fix that indicates a marketing call.

• More effective enforcement: The enforcement of the confidentiality rules in the Regulation will be the responsibility of national data protection authorities.

This post is also available in fr_FR.