Working Party for Telecommunication’s meeting on the proposed ePrivacy Regulation

Background information / Scenario
On 10 January 2017, the Commission adopted its proposal for a Regulation on Privacy and Electronic Communications (“Proposal” or “ePR”). The Proposal, which will replace the current ePrivacy Directive, aims to ensure protection of fundamental rights and freedoms and in particular rights concerning the respect of private life and communications and the protection of personal data in the electronic communications sector. The Proposal contains provisions ensuring confidentiality of electronic communications and specifies under which conditions processing of electronic communications data is permitted. To do so, the Proposal seeks to align the rules for electronic communications with the new standards of the General Data Protection Regulation (“GDPR”).

The Working Party for Telecommunications and Information Society (“WP TELE”) finalised the first examination of the Proposal, and the Maltese Presidency has put together a progress report summarising the state of play of the discussions. Nevertheless, there remain many open questions to be addressed. For this reason, in a note published on the 3rd of July, the Presidency of the Council EU (“Presidency”) announced a WP TELE meeting on ePrivacy on 10 July.

Main issues
The Presidency has identified two sets of issues on which the meeting will focus:
• the interplay between the Proposal and the GDPR. According to the Presidency, clarifications are needed in the following three areas where the GDPR and the ePR are closely linked:
o Material scope of application (GDPR vs. ePR): the European Commission will therefore explain which activities and actors are covered by the ePR and the GDPR respectively and how the two regulations complement each other;
o Legal grounds for processing electronic communications data: according to the Presidency, a comparison of legal grounds under the ePR and those under the GDPR should be given, also explaining how they apply;
o Consent under the GDPR and its application in the ePR context: the Presidency believes it is important to explain the concept of consent under the GDPR and to clarify how the conditions for consent established in the GDPR can be complied with in the ePR context;
• the issues related to processing information stored in devices (cookies): the Presidency is presently looking for additional clarifications on the exceptions applicable to cookies under art. 8(1) and the modalities of consent via the browser settings under art. 9(2).

Practical implications
During the meeting, the European Commission is expected to explain these bullet points to the delegations, with the aim to provide further clarity, answering open questions and dispelling potential misunderstandings with regards to the Proposal. The proposed date of entry into application of the ePR is 25 May 2018 (the date when the GDPR will start to apply). Nevertheless, the delegations consider the proposed date to be unrealistic.
We will continue to closely monitor the progress of the ePrivacy Regulation.