The Council of the EU has today made a surprise announcement that it has approved its negotiating position on the ePrivacy Regulation (i.e. the successor to the ePrivacy Directive), which will further reform EU cookie consent and communications content/metadata rules in the EU.
The process now is that the ePrivacy Regulation will be negotiated in trilogue negotiations between the Council of the EU and the European Parliament, with the European Commission facilitating / brokering those negotiations.
The compromise text of the ePrivacy Regulation approved by the Council has not yet been published (as at the time of writing this post), but a press release is available which provides insights into the position the Council has agreed. View the press release here: Council agreement on ePrivacy rules.
On communication data rules, the press release reveals that:
“As a main rule, electronic communications data will be confidential. Any interference, including listening to, monitoring and processing of data by anyone other than the end-user will be prohibited, except when permitted by the ePrivacy regulation.
Permitted processing of electronic communications data without the consent of the user includes, for example, ensuring the integrity of communications services, checking for the presence of malware or viruses, or cases where the service provider is bound by EU or member states’ law for the prosecution of criminal offences or prevention of threats to public security.
Metadata may be processed for instance for billing, or for detecting or stopping fraudulent use. With the user’s consent, service providers could, for example, use metadata to display traffic movements to help public authorities and transport operators to develop new infrastructure where it is most needed. Metadata may also be processed to protect users’ vital interests, including for monitoring epidemics and their spread or in humanitarian emergencies, in particular natural and man-made disasters.
In certain cases, providers of electronic communications networks and services may process metadata for a purpose other than that for which it was collected, even when this is not based on the user’s consent or certain provisions on legislative measures under EU or member state law. This processing for another purpose must be compatible with the initial purpose, and strong specific safeguards apply to it.”
On cookie consent rules, the press release reveals that:
“As the user’s terminal equipment, including both hardware and software, may store highly personal information, such as photos and contact lists, the use of processing and storage capabilities and the collection of information from the device will only be allowed with the user’s consent or for other specific transparent purposes laid down in the regulation.
The end-user should have a genuine choice on whether to accept cookies or similar identifiers. Making access to a website dependent on consent to the use of cookies for additional purposes as an alternative to a paywall will be allowed if the user is able to choose between that offer and an equivalent offer by the same provider that does not involve consenting to cookies.
To avoid cookie consent fatigue, an end-user will be able to give consent to the use of certain types of cookies by whitelisting one or several providers in their browser settings. Software providers will be encouraged to make it easy for users to set up and amend whitelists on their browsers and withdraw consent at any moment.“
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