On 10 February 2021, the Council of the European Union (Council) agreed its negotiating mandate for the proposed Regulation on Privacy and Electronic Communications (ePR), which will replace the current ePrivacy Directive 2002/58/EC (ePD). The European Parliament (EP) adopted its negotiating mandate in October 2017, based on the original proposal from the European Commission in January 2017. The European institutions will now seek to agree the final text of the ePR by means of the trilogues (insterinstitutional negotiations) process. This article sets out the significant areas of divergence across the three proposals.
The ePR will update European Union rules relating to, amongst other things, cookies and other tracking technologies, electronic communications data, and electronic direct marketing. The rules on electronic marketing and tracking technologies will be relevant for the vast majority of companies operating in or targeting the EU, but certain sectors are likely to be particularly affected:
The ePR will also govern how regulators cooperate and ensure consistency in the enforcement of these rules.
In relation to each of these key topics, we set out below the significant areas of divergence between the European institutions. Comments on the EP and Council mandates are made in comparison to the Commission proposal.
• Consent required to use electronic communications services to send direct marketing communications to natural persons via, except:
• ‘Soft opt-in’ for electronic mail to existing customers remains unchanged from ePD; and
• Member States can choose to allow live marketing calls on an opt-out basis.
• Compared to the ePD, this consent requirement is technologically neutral and so more clearly applies to within-platform messaging services. There is also less scope to relax the consent requirement for B2B marketing.
1 We note that the wording of this clause 8(1)(g) in fact refers to compatibility with the purpose for which the ‘electronic communications data’ were originally collected, but we presume this is a drafting error.