EU Member States agree on EU Council’s Draft for the ePrivacy Regulation

On February 10, 2021, representatives of the EU Member States have reached an agreement on a negotiating mandate for the draft ePrivacy Regulation.

The Council of the European Union’s (the Council) text approved by the EU Member States was prepared under Portugal’s Presidency. It will form the basis of the Council’s negotiations with the European Parliament as part of the trilogue process on the final terms of the ePrivacy Regulation, which will replace the current ePrivacy Directive.

The main key elements of the new draft are highlighted by the Council, and encompass the following points:

• Coverage of both electronic communications content and communications metadata – the text sticks with the general principle that electronic communications data is confidential, which means that any interference by anyone other than the parties involved in the communication is prohibited, except when given permission by the ePrivacy Regulation
• Machine-to-machine data transmitted via a public network, as this is deemed necessary to protect privacy rights in the context of Internet of Things applications
• The scope of application includes users located in the EU, regardless of whether the processing of their data takes place outside the EU or the service provider is located in a non-EU jurisdiction
• Regarding the use of cookies and other technologies involving the storage of information on or collection of information from a user’s device, the Council’s text provides that the use of these technologies will only be legitimate if the user has consented or for specific purposes laid down in the ePrivacy Regulation; however, users should be able to have genuine choice

In addition to broadening the scope of the current directive, the proposed regulation would most likely affect an advertising technology market that is already in the process of undergoing significant changes. As such, the European Commission is also working on the proposed Digital Service Act, Digital Governance Act and Digital Market Act.

However, the draft is presumed to initiate some arguments going forth into the next stage. Based on previous drafts, there are some differences which will need to be reconciled. Especially with regard to the permissions for accessing content and metadata of electronic communications, the two sides are somewhat divided. Where the European Parliament is pushing primarily for consent, the Council seems to have added some more permissions and exceptions to the consent rule. The content regarding data retention will be another point where intense arguments are predicted.

Criticism also comes from some countries, for example from the German Federal Commissioner for Data Protection, Ulrich Kelber. In a press release he attacked the new draft as “a severe blow to data protection”, mentioning that he is concerned by the “interference with the fundamental rights of European citizens”.

Although the new draft brings the erPrivacy Regulation back to life, it is still a long road before unison on its text is fully reached. It is certain that intense discussion in the upcoming trilogue process will continue, and the outcome will be closely watched by many.