ePrivacy on its way
There has been a great deal of conflicting opinions of EU member states since the European Commission presented its plans to turn the ePrivacy Directive into European law.
Continuous internal disagreement and trade lobbyism appear to have stalled the plans for a publication completely.
However, now the Finnish Justice Ministry told The Privacy Advisor that they look to find an agreement between the member states before the end of this year, IAPP reports. With an agreement in hand, the European Commission and the European Parliament can begin finalizing a text.
But senior counsel at Future of Privacy Forum Gabriela Zanfir-Fortuna expects rough sailing when the actual negotiations between the parties begin.
Especially issues on permitted uses of cookies and cookie walls may trigger delays, and the fact that hard lobbyism is trying to alter aspects of the ePrivacy Regulation in favor of the advertising industry.
A new iteration of the ePrivacy text is expected to be ready for the next meeting of the Working Party on Telecommunications and Information Society on November 7.
The Regulation will introduce stricter requirements for what is and is not confidential in electronic communications as well as what defines tracking of internet users.
According to the latest drafts of the regulation, the ePrivacy Regulation will:
- Not allow pre-ticked consent boxes for cookies.
- Require that users are able to opt out of cookies.
- Prohibit cookie walls (no data-no access model).
Especially the last argument could be a huge issue for the advertising industry as it will be harder for websites and bureaus to generate revenue through behavioral advertising which relies on cookie data.
The ePrivacy regulation
The new ePrivacy Regulation will repeal and replace the EU’s present ePrivacy Directive (2002/58/EC). The new provisions will cover electronic communication networks; data stored in or sent from end users’ equipment such as computers, smartphones, and tablets (including cookies, device IDs, and other identification software); and methods used to contact customers over electronic-communication networks for direct-marketing purposes.
ePrivacy may disrupt the online advertising industry
Therefore, the forthcoming regulation has naturally alarmed the industry, which since the birth of the GDPR has seen a ten percent cut in revenue, according to a McKinsey report.
On October 18, the European Publishers Council, together with nine other European publishers and advertising bodies, directed a plea to the European council arguing that:
“The ePrivacy Regulation puts the future financial viability of independent, advertising-funded media at risk”.
The risk is well-defined as under the current ePrivacy law proposals, publishers and any site owners would need explicit consent in order to use any form of cookie.
Planet49 ruling by EU Court of Justice
A recent ruling by the European Court of Justice (CJEU) may prove a hardline against tracking with cookies.
In the case against German lottery website Planet49, the CJEU ruled that users must actively choose to let companies store cookies in their browsers. Websites may not assume users want cookies by default. Pre-ticked boxes may therefore be a thing of the past.
Moreover, the Court also clarified that the ePrivacy will protect both personal and non-personal data in order to fully protect users’ private spheres and to avoid any misunderstandings of what personal data is.
Many experts believe the ruling provides legal certainty which will boost the legislative efforts to adopt the ePrivacy Regulation, IAPP reports.
Is your website ready for the ePrivacy Regulation?
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In the meantime, we adhere to the ePrivacy Directive for using cookies and the GDPR for collecting and processing personal information (with cookies).
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