Romanian Presidency Update on ePrivacy Regulation Progress

The Romanian Presidency has provided an update on the ePrivacy Regulation (ePR) discussions at the Working Party on Telecommunications and Information Society (“WP TELE”) and the Council of the European Union. The Progress report was written ahead of the WP TELE meeting yesterday.

The ePR was originally supposed to be implemented at the same time as the General Data Protection Regulation (GDPR) but negotiations stalled and continue to date. The progress report provides an overview of some of the discussions that have happened since the Commission adopted the proposal in January 2017 for a Regulation on Privacy and Electronic Communications to replace the ePrivacy Directive, with a particular emphasis on developments over the last six months.

The 2018 discussions in June and December 2018 at the TTE Councils discussed a variety of issues including the link between GDPR and ePR, the need for flexible rules that are future proof to account for developing areas such as Artificial Intelligence (AI) or the Internet of Things (IoT), child imagery online, data retention and the roles of supervisory authorities.

There were nine meeetings of the WP TELE under the Romanian Presidency (January to June 2019). Issues discussed included:

– The interaction of ePrivacy with new technology. There were concerns raised about AI, Machine-to-Machine and the Internet of Things. In order to address them, there have been debates in the WP TELE and the Council which resulted in clarifications to recitals 13, 20a and 21.

– The WP and Council also requested discussions about the processing of electronic communications for the prevention, detection and reporting of child abuse imagery. There have been diverging views on whether to even add this to the ePR, and if so, whether to do so as part of Article 6 on processing of electronic communications data or Article 11 on the restrictions.

– The handling of data rention to maintain the possibility for existing and future data retention regimes. The Romanian Presidency proposed changes to Article 11 and Recital 26 to address concerns that replicating the ePrivacy Directive solution was not sufficient.

– Article 18 on the supervisory authorities. The Romanian Presidency indicated “significant attention” was devoted to this area with a goal of allowing more flexibility for Member States. The Presidency has simplified and clarified Article 20 on cross-border cooperation and Article 19 on the European Data Protection Board.

The progress report will be submitted to the TTE Council in June. The rotation of the EU Presidency will transition to Finland in July 2019 followed by Croatia in January 2020.