New draft ePrivacy Regulation - more changes

The European Commission has proposed a new draft ePrivacy Regulation to replace the existing ePrivacy Directive. 

The ePrivacy Directive regulates, amongst other things, the confidentiality of communications, direct marketing by electronic means and the use of cookies. The proposed new rules are part of the general reform of data protection and are intended to work alongside the General Data Protection Regulation (GDPR) from 25 May 2018.  Like the GDPR, the ePrivacy Regulation is in the form of a regulation, which means that it will have direct effect in EU member states once it comes into force without the need for national implementing legislation. 

Key features of the new ePrivacy Regulation are:

• Broader scope – The regulation captures broader technologies, such as Voice over IP, instant messaging and web-based email services, which do not currently fall within the scope of the ePrivacy Directive. 
• Cookies –  There are new rules on the use of cookies and similar technologies which can track users’ activities. In particular, the regulation supports the use of in-built browser settings to express consent (which may ultimately lead to reduced use of cookie banners) and requires software providers to integrate settings into their products which allow users to opt-in and opt-out easily.
• Direct marketing – Individuals will need to consent to receiving marketing calls (i.e. ‘opt in’), unless national laws provide otherwise.  This could mean a change from the current position under UK law, which permits non-automated marketing calls unless the individual has opted out.
• Penalties – Penalties under the new regulation will be significantly higher.  In line with the GDPR, the maximum fine for the most serious breaches will be EUR 20 million or 4% of annual worldwide turnover, whichever is higher.

The regulation is in the early stages of the EU legislative process and therefore is subject to change. 

For further information on the ePrivacy Regulation and general data protection advice, please contact Beverley Flynn on +44 (0) 1483 734264 or a member of the commercial team at Stevens & Bolton.