Europe’s Proposed ePrivacy Regulation Receives Support Of Member State Working Group

King & Spalding

Last week, the European Union’s (“EU”) data protection authority, known as the Article 29 Working Party (“Working Party”), declared its support for the European Commission’s (“EC”) proposed ePrivacy Regulation (alternatively, the “Proposal”).  The Working Party’s report praised the proposed ePrivacy Regulation for broadening the coverage of existing regulations to cover metadata and the intrusiveness of cookies.  The Working Party expressed concern, however, that the proposed regulation did not do enough in some areas, such as allowing users to opt out of tracking software.

In January 2017, the EC published the proposed ePrivacy Regulation, which would replace the ePrivacy Directive of 2002 (2002/58/EC) and the Cookie Directives of 2009 (2009/136/EC).  As discussed in a previous King & Spalding newsletter, the proposal includes rules on the confidentiality of electronic communication data, the use of cookies on websites, and direct marketing practices.  The proposal also covers for the first time so-called “over-the-top” (“OTT”) providers, such as WhatsApp, Facebook Messenger, and Skype. 

The Working Party, which is made up of a representative from the data protection authority from each EU member state and provides expert advice to the member states regarding data protection, welcomed the Proposal’s “broad prohibitions and narrow exceptions, and the targeted application of the concept of consent.”  However, the Working Party noted concern regarding the Proposal’s failure to address the tracking of the location of terminal equipment, the conditions under which the analysis of content and metadata is allowed, and the default settings of terminal equipment and software with regard to tracking walls. 

The EC’s goal is to adopt the new ePrivacy Regulation by May 25, 2018, at the same time the General Data Protection Regulations are set to become effective.  As a European regulation, the ePrivacy Regulation will be directly applicable in all EU Member States once it enters into force.

A copy of the report, entitled “Opinion 01/2017 on the Proposed Regulation for the ePrivacy Regulation (2002/58/EC)”, can be found here.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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