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ePrivacy Regulation (ePR) News – Following EU Efforts to Update the ePrivacy Directive

The European Union has been working on modernizing the ePrivacy Directive with a new law, the ePrivacy Regulation, for several years now. If the EU reaches agreement on the ePR, it will work in tandem with the General Data Protection Regulation (GDPR) to bolster data privacy protections in Europe.

Here is some of our coverage of the ePR:

Cookie Consent and the ePrivacy Regulation (formerly ePrivacy Directive)

Cookie Consent Manager for GDPR and ePrivacy

ePrivacy Regulation: Full Text (Proposed)

The text is still from the draft released in the spring of 2018. A few of the sections have received major updates since then. However, because of the uncertainty of the modifications to the text during the last few meetings, we have not updated to the latest draft version yet.


Updates from the News:

At this point, the negotiations over the ePrivacy regulation are expected to last at least into the summer of 2019. There is likely to be a minimum implementation period of two years before enforcement begins (the same length as the EU adopted for GDPR). There may also be some articles that are dropped from the final version if the parties are unable to agree on the broad role or specific text in that section of the ePR. Here are some of the updates that we have written over the last year in coverage of the negotiations:

New ePrivacy Regulation Draft in July with Article 5-7 Changes
The Finnish presidency has issued a new draft of the ePrivacy Regulation (ePR) in advance of a WP TELE meeting on September 9, 2019. The updated draft focuses on changes to Articles 5-7. The update follows proposed changes in the text by Germany earlier in the month.

ePR Update: Finnish Presidency Surveys Member States to Find Consensus
The latest note from the incoming Finnish presidency on the ePrivacy Regulation (ePR) asked member states a series of questions as, according to the Finnish presidency, “it is clear that further discussion on the proposal is still needed.”

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.

EDPB Issues Opinion on Intersection of GDPR and ePrivacy
The European Data Protection Board has published a 24 page Opinion of the Board under Article 64 on the interplay between the ePrivacy Directive and the GDPR. The opinion was adopted in order to ensure a consistent interpretation of GDPR throughout the European Economic Area. It was adopted during the Eighth Plenary session.

EU Issues Third Proposal of ePrivacy Regulation Changes in February
The Romanian Presidency of the Council of the European Union has issued its third set of revisions to the ePrivacy Regulation this month ahead of a WP TELE meeting tomorrow. Activity on the ePR is definitely higher than anticipated after the release of the provisional agendas for Council meetings suggested that the Telecommunications Council wouldn’t take up legislative deliberations until June 2019.

Romanian Presidency Offers ePrivacy Regulation Compromises
A proposal for compromise on the ePrivacy Regulation will be discussed later this week as the Telecommunications Council meets on February 7th. The picture on ePR appeared bleak earlier this year when the provisional agendas for the first half of 2019 were released by the Romanian Presidency and the Telecommunications Council was not scheduled to undertake deliberations on ePrivacy until early June. However, last week the Romanian Presidency issued a notification that ePR would be discussed shortly and an update would follow. According to the update, which has now been released, there have been discussions throughout January on “the impact of ePR on new technologies and the consent requirements, processing of electronic communications data for the purposes of child protection and the exclusion of national security and defence from the scope of ePR.”

ePrivacy Regulation Destined for a 2021 Start Date?
The Romanian Presidency has released the Provisional agendas for Council meetings during the first half of 2019. It is our first glimpse into the ePrivacy Regulation as speculation continues as to when ePR compliance requirements may begin. The Telecommunications Council is scheduled to undertake legislative deliberations on the ePrivacy Regulation on June 7, 2019. Even if an agreement is reached on the text of the measure to repeal the ePrivacy Directive and replace it with ePR, the finalization of the new privacy regulation and an expected implementation period of at least one year is likely to push the start of enforcement back into 2021 at the earliest.

Will 2019 Be the Year of GDPR Enforcement & Finalization of the ePrivacy Regulation?
The Dutch telecom secretary in a recent brief to Parliament said that there would be no vote on ePrivacy reform at their next meeting in December. However, the appointed rapporteur on the ePrivacy Regulation was also interviewd today at the IAPP conference and she suggested that there was a 50/50 chance that the Council of the EU will adopt a position on the ePrivacy Regulation by April 2019. Once the Council agrees on the legislation, a trilogue of the three institutions can finalize it.

EDPS Urges Adoption of ePrivacy Regulation
The European Data Protection Supervisor urged adoption of the ePrivacy Regulation (ePR) in a blog post last week titled, “The urgent case for a new ePrivacy law”. The EDPS called the proposed ePR “crucial to protect the fundamental rights to privacy and the protection of personal data in the digital age.” He said there is “a clear and urgent need to close … gaps [between electronic communications services and information society services] and to strengthen the protection of privacy and security of online communications.”

Latest on ePrivacy from Austria
Our last update on the ePrivacy Regulation (ePR) was over the summer, when the Austrian presidency introduced compromise text in July and the debate centered on changes to Articles 6, 8 and 10. We have just reviewed the proposed changes released on September 20, 2018 by the Presidency, issued ahead of the September 27th WP TELE meeting of the delegations. The introduction to the latest draft of ePR includes a number of questions raised by the delegations in response to the last draft (from July).

EDPS on ePrivacy Regulation
A guest post with an interview of Giovanni Buttarelli, the European Data Protection Supervisor, was recently published in the Irish Tech News. The interview contains Mr. Buttarelli’s thoughts on the upcoming ePrivacy Regulation, the text of which is still undergoing revisions.

Presidency Proposes Changes to ePrivacy Articles 6, 8 and 10
The Austria Presidency has issued revisions to Article 6, 8 and 10 for the proposed ePrivacy Regulation in connection with next week’s WP TELE meeting. The introduction by the Presidency to the Delegations indicates that based on the recent TTE Council, additional discussions of these complex provisions containing core elements is warranted to advance the proposal and address a number of concerns held by delegates.

Significant Progress on ePrivacy Regulation Highlighted by Progress Report
Europe is meeting this week for further discussions of the ePrivacy Regulation after significant progress, according to a progress report from the Bulgarian Presidency to the Council of the European Union. The questions to be addressed this week surround Articles 5 and 6, Articles 8 and 10, and the overall mission of enabling advancement of the competitiveness of European industry while safeguarding the confidentiality of citizen’s communications and the protection of their data.

EDBP Pushes ePrivacy Regulation After GDPR Goes Into Effect
The European Data Protection Board (EDPB) yesterday issued a statement calling for the ePrivacy Regulation to replace the current ePrivacy Directive as soon as possible. It offered its advice and guidance on the last round of proposed amendments and urged the “European Commission, Parliament and Council to work together to ensure a swift adoption of the new ePrivacy Regulation …”

Revised ePrivacy Regulation Draft Circulated
In advance of meetings on May 16th and 17th, a revised draft of the ePrivacy Regulation has been circulated by the Bulgarian Presidency of the Council of the EU. The ePrivacy Regulation will update and replace the ePrivacy Directive, ultimately working in tandem with the EU General Data Protection Regulation (GDPR) to protect the data privacy of EU citizens.

Last Update: August 15, 2019