On March 6, 2020, The Presidency of the Council of the European Union (‘the Presidency’) released another revised text of the proposed Regulation concerning the Respect for Private Life and the Protection of Personal Data in Electronic Communications and Repealing Directive 2002/58/EC (Regulation on Privacy and Electronic Communications) (‘the Draft ePrivacy Regulation’).

The European Commission first introduced the draft ePrivacy Regulation in 2017 with the goal of reinforcing ‘trust and security in the Digital Single Market’. The proposed regulation focuses on ensuring the privacy and security of data transferred electronically. Designed to replace the Privacy and Electronic Communications Directive (Directive 2002/58/EC) and to better align with the EU’s General Data Protection Regulation (‘GDPR’).

Since its introduction in 2017, the proposed regulation has been modified and amended many times to find a compromise between all Member States. 

The proposed amendments introduced this week offer further clarifications in Recital 12 with regard to machine-to-machine and Internet of Things services. In addition, the Draft ePrivacy Regulation includes the modifications to Articles 6 to 8, as introduced by the previous compromise proposal, released on February 21, 2020. 

A major revision proposed by the EU Council Presidency would rely on “legitimate interest” to process metadata and also place cookies on end-users’ devices. These would be subject to certain conditions including:

  • Conducting data protection impact assessments 
  • Consulting the relevant supervisory authority body 
  • Implementing appropriate security measures 
  • Providing information to end-users about data processing activities 
  • Providing end-users with the right to object to such data processing 
  • Not sharing metadata or information collected through the use of cookies or similar technologies with third parties, unless it has been anonymized 

The Draft ePrivacy Regulation will be further discussed during the Working Party on Telecommunications and Information Society meeting on March 12, 2020, with specific reference to the modifications to Articles 6 to 8. In addition, the Draft ePrivacy Regulation outlines that the discussion on the proposal will most likely continue on March 19, 2020, and that the Presidency would like to invite delegations to provide their written comment in relation to Articles 6 to 8 by March 10, 2020. You can read the modified draft in its entirety, here