On 10 January 2017, the European Commission unveiled it’s proposal for an ePrivacy Regulation. The proposal follows a long process of review by the Commission of the ePrivacy Directive, which his also known more commonly as the Cookie Directive. IAB Europe warned in its press release that in it’s current form, the law “would undeniably damage the advertising business model – without achieving any real benefits for users from a privacy and data protection point of view“. With these FAQs we aim to answer some of the questions about the new proposal – from what a regulation is to when this law will come into force.
Q: What is the ePrivacy Regulation?
Q: How will the consent rule change under the ePrivacy Regulation?
Q: Are there any exceptions to this rule?
A: The new cookie rules would permit collecting information for first party web audience measurement without the consent of the user. The proposal also clarifies that configuration checks to determine whether a user can receive content requested, which can include a user’s ability to view advertising, does not require consent. Cookies et al. necessary for the functioning of a service (e.g. providing shopping cart functionality) remain exempted from the consent requirement, as was the case under the old Cookie Directive. In effect this clarifies that first party analytics and ad block detection methods are now exempted from the consent rule, too. It should be noted that the General Data Protection Regulation still applies to the processing of personal data, even where its collection is exempted from the scope of the ePrivacy Regulation.
Q: What else is new under the ePrivacy Regulation?
A: The ePrivacy Regulation would introduce rules allowing users to set general privacy preferences in their browsers and other software, which would be binding on and enforceable against any other person. In addition, the regulation would mandate browsers and other software to provide the option to actively prevent data collection through cookies et al., and to force users to make a choice as to their preference during set up.
Q: When will this become law? How does the lawmaking process work?
A: An agreement must now be found between Members of the European Parliament and Member States’ governments in the Council of the European Union, both of whom can make changes to the proposed text. This procedure is known as the Ordinary Legislative Procedure. A compromise between the two co-legislators will most likely be reached informally in so-called trilogue negotiations between representatives of the Council and the Parliament with input from the Commission. Below, you can see a diagram showing the process in more detail.
Q: What’s a trilogue negotiation?
A: Trilogue negotiations occur after both the Parliament and the Council have prepared their initial positions, as outlined in the diagram above. Due to time limits which apply only later during the ordinary legislative procedure, the co-legislators usually seek to come to an informal agreement before the Parliament and the Council formally vote on a proposal for the first time. After the Parliament and the Council vote on a draft law for the first time, strict time limits will apply for the second and third rounds of votes.
For this reason, the representatives of the co-legislators meet with representatives from the Commission informally to agree before this part of the process.
Q: Who gets to have a say during the legislative process?
A: In the Parliament, the Committee on Civil Liberties, Justice and Home Affairs
(LIBE) will take the lead on the draft law. The center-left group of Socialists and Democrats in the European Parliament has secured rapporteurship on the file. The group has appointed Marju Lauristin
, an Estonian MEP who has previously worked on the GDPR, to take charge of compiling an amended version of the law (legislative report) that can find support by a majority of parliamentarians. The Parliament as a whole will then vote to approve or disapprove this report in a plenary session.
The Committee on Internal Market and Consumer Protection (IMCO), the Committee on Industry, Research and Energy (ITRE), and the Committee on Legal Affairs (JURI) will contribute to the lead committee’s work with non-binding opinions. Despite being non-binding, ideas suggested in these opinions can be taken over by the rapporteur of the legislative report.
In the Council, the proposal will be dealt with by the Working Party on Telecommunications and Information Society (TELECOM) and ultimately voted on by national ministers in the Transport, Telecommunications and Energy Council configuration.
Q:When can we expect the co-legislators to reach a compromise? Are there any deadlines that have to be met?
A: The Commission’s intention is that the ePrivacy Regulation will become applicable at the same time as the General Data Protection Regulation in May 2018. However, it is not certain that this timeline can be met. Definitions of the ePrivacy Regulation hinge on the European Electronic Communications Code, which is in the legislative process right now and is not expected to be finalized before the end of the year. In addition, just like with the General Data Protection Regulation, the debate on this draft law is likely going to be contentious with many different interests having to be balanced, which may slow down the process. The average time frame for adoption of a European law is 18 months.
As explained above, there are no official deadlines until both co-legislators have held their first formal vote on a draft law in the ordinary legislative procedure. Once an informal agreement has been reached, it still takes time for the law to be drawn up in each of the languages, and for the co-legislators to formally vote on the law. This process took almost half a year for the GDPR. Realistically, the negotiations on the ePrivacy Regulation would have to be done and dusted by the end of 2017 if the deadline proposed by the Commission were to be met.