On April 4, 2017, the Article 29 Working Party (the “Working Party”) adopted an Opinion on the Proposed Regulation of the European Commission for the ePrivacy Regulation (the “Proposed ePrivacy Regulation”). The Proposed ePrivacy Regulation is intended to replace the ePrivacy Directive and to increase harmonization of ePrivacy rules in the EU. A regulation is directly applicable in all EU Member States, while a directive requires transposition into national law.

The Working Party welcomes the Proposed ePrivacy Regulation and outlines some points of concern that should be improved during the legislative process which is intended to be completed by May 2018 when the EU General Data Protection Regulation (“GDPR”) takes effect.

Key Aspects of the Proposed ePrivacy Regulation

  • Consistency with the GDPR. The Working Party welcomes the fact that the same authority responsible for monitoring compliance with the GDPR will also be responsible for the enforcement of the Proposed ePrivacy Regulation and will be able to impose similar fines. Furthermore, the Working Party favors the removal of the existing sector-specific data breach notification rules in the ePrivacy context, consistent with the GDPR’s general data breach notification rule applicable to all sectors.
  • Extended Scope. The Working Party welcomes the expansion of the Proposed ePrivacy Regulation to include Over-The-Top providers in addition to traditional telecom operators. Moreover, the Working Party favors the clarification that the Proposed ePrivacy Regulation covers machine-to-machine interaction as well as content and associated metadata. The Opinion also favors the recognition of the importance of anonymization, the broad formulation of the protection of terminal equipment and the inclusion of legal persons in the scope of the Proposed ePrivacy Regulation.
  • Consent. The Working Party welcomes the clarification that Internet access and mobile telephones are essential services and that providers of these services cannot “force” their customers to consent to any data processing unnecessary for the provision these services. According to the Working Party, given the dependence of people on these essential services, consent for the processing of their communications for additional purposes (such as for advertising and marketing purposes) is not valid. In addition, the Working Party approves that the consent requirement for the inclusion of personal data of natural persons in directories is harmonized. Finally, the Working Party appreciates that the prohibition to collect information from end-users’ terminal equipment does not apply in cases of measuring web traffic under certain conditions.

Points of Concern

  • WiFi tracking. According to the Working Party, the obligations in the Proposed ePrivacy Regulation for the tracking of the location of terminal equipment should comply with the GDPR requirements. Specifically, the Working Party notes that MAC addresses are personal data, even after security measures, such as hashing, have been implemented. Depending on the purpose of the data collection, the Working Party notes that tracking under the GDPR is likely either to be subject to consent, or may be performed if the collected personal data is anonymized (preferably immediately after collection). Finally, the Working Party invites the European Commission to promote a technical standard for mobile devices to automatically signal an objection against such tracking.
  • Analysis of content and metadata. The Working Party appreciates the recognition that metadata may reveal very sensitive data and that analysis of content is high-risk processing. According to the Working Party, it should be prohibited to process content and metadata of communications without the consent of both sender and recipient, except for specific purposes permitted by the Proposed ePrivacy Regulation, including security and billing purposes, as well as spam filtering purposes. To that end, the Working Party recommends that the Proposed ePrivacy Regulation also permit the processing of content and metadata of communications for purely household usage as well as for individual work-related usage. According to the Working Party, the analysis of content and metadata of communications for all other purposes, such as analytics, profiling, behavioral advertising or other commercial purposes, should require consent from all end-users.
  • Tracking walls. The Working Party advocates that the Proposed ePrivacy Regulation should include an explicit prohibition of tracking walls (i.e., the practice whereby access to a website or service is denied unless individuals agree to be tracked on other websites or services). According to the Working Party, such “take it or leave it” approaches are rarely legitimate. The Working Party also recommends that access to content on websites and apps should not be made conditional on the acceptance of intrusive processing activities, such as cookies, device fingerprinting, injection of unique identifiers or other monitoring techniques.
  • Privacy by default regarding terminal equipment and software. The Working Party recommends that terminal equipment and software must, by default, “offer privacy protective settings, and offer clear options to users to confirm or change these default settings during installation.” The Working Party recommends that users have the ability to provide consent through their browser settings and have the option to opt-in to Do Not Track.

The Working Party also made additional recommendations with regard to clarifying the Proposed ePrivacy Regulation’s extraterritorial scope, the conditions for obtaining granular consent through browser settings and including behavioral advertisements in the direct marketing rules. Finally, the Working Party discussed several other issues that should be clarified to ensure legal certainty, such as the conditions for the employer’s interference with company-issued devices.

Read the Opinion of the Article 29 Working Party.