An overview of the agreed position by EU Members States for revised rules on the privacy and confidentiality of electronic communications.
A goal of the European Union is to support the digital transformation in Europe. The authors of this article explain the European Union's position for revised rules on the privacy and confidentiality of electronic communications.
The European Union (“EU”) Member States have agreed1 on a position for revised rules on the privacy and confidentiality of electronic communications, which allows the Council presidency to start discussions with the European Parliament on the final text of the planned ePrivacy regulation.
A DIGITAL FUTURE FOR EUROPE
The goal of the EU is to support the digital transformation in Europe. Especially in light of the COVID-19 pandemic, the EU is working to accelerate the technological transition. Digitalization is crucial in fostering new forms of growth and strengthening the EU's resilience. The EU is working on several policies contributing to achieving the goal of digital transition and the main policy areas are digital services, data economy, artificial intelligence, enabling technologies, connectivity, and cybersecurity. A key element of the digital transition is to protect the values of the EU and the fundamental rights and security of their citizens.
SCOPE OF THE ePRIVACY REGULATION
The current ePrivacy directive contains rules on the protection of privacy and confidentiality in the use of electronic communications services, but it needs to be updated in light of new technological developments such as the widespread use of Internet-based services like voice communication, e-mail and text messaging, and new techniques to track users' online behavior. The planned update of the current ePrivacy directive will be in the form of a regulation which will be directly applicable in all EU Member States, as opposed to a directive which would need to be transposed into national law by the EU Member States.
The planned ePrivacy regulation will apply when end-users are in the EU, even when their communications data is processed outside the EU. Many ePrivacy provisions will apply to both natural and legal persons. It will cover not only the content of electronic communications transmitted through publicly available services and networks but also metadata, including, for instance, information on location, time and recipient of communication. As a main rule, electronic communications data shall be confidential and any processing of such data shall only be allowed in specific circumstances.
One hot topic relates to cookies. In line with a decision of the Court of Justice of the European Union issued in October 2019,2 the Council defends that users shall have a genuine choice on whether to accept cookies. Moreover, making access to a website dependent on consent to the use of cookies for additional purposes, as an alternative to a paywall, may be lawful if the user is able to choose between this offer and an equivalent offer not involving cookie consent. Users shall be able to “whitelist” one or several providers via browser settings and service providers shall be encouraged to facilitate these settings and allow the withdrawal of consent anytime.
Other topics such as online identification, public directories, and unsolicited and direct marketing are also within the scope of the draft ePrivacy regulation.
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