ePrivacy Regulation

The ePrivacy Directive (Directive 2002/58/EC), also nicknamed the “Cookie Directive” because of its rules on storing and accessing data on a users’ device, such as so-called Internet cookies, is a directive primarily regulating the processing of personal data in the electronic communications sector, i.e. by telecommunications providers. 

The ePrivacy Directive (ePD) is essential to the digital advertising industry because of its rules on cookies. Cookies play an important role in websites delivering a personalised experience, including relevant advertising. The ePrivacy Directive stipulates that member states must create rules that require website operators to inform the user concerned about the use of cookies and obtain their consent to use (most) cookies. 

The Commission wanted to repeal and replace the Directive with an ePrivacy Regulation, therefore, the ePrivacy Regulation was published by the European Commission on 10 January 2017. IAB Europe released its first position paper on the proposal for an ePrivacy Regulation on 13 July 2017 and its latest in April 2021.

As a matter of EU law, Regulations can be relied upon directly by citizens, meaning that the EU Member States no longer have a role in interpreting its application to fit within their national legal order.

At the European Parliament, the Committee in charge of the file is the LIBE Committee and its shadow rapporteur is MEP Birgit Sippel from S&D. Following the ordinary legislative procedure for this file, the European Parliament (EP) adopted its report in October 2017. 

On 10 February 2021, the Council of the EU signed off on its version of the ePrivacy Regulation, marking the beginning of negotiations with the European Parliament on the final text of the Regulation. The agreement constitutes a significant milestone toward getting an updated regulation in place. 

Whereas, the current form proposed Regulation does no longer include the text that would mandate browsers and other software providers to provide the option to prevent data collection through cookies et al. actively and to force users to choose as to their privacy preferences during installation. The absence of this provision (Article 10) may still be obfuscated by similar language in the Council text, which in practice reinstates the removed Article 10 provision. 

The proposal has also been an opportunity for the European Parliament to try to include consent as a condition for accessing a service. The European Council adopted a very opposite position by recognising the rights for ‘services provided in accordance with the freedom of expression and information including for journalistic purposes’. There is a great diversity of ad-funded content and outlets made available to users and submit that all online media are primarily financed through advertising. This underscores the importance of so-called conditionality for the continued sustainability of online media businesses. 

For more information on the political and legal aspects of the proposal, check out IAB Europe’s ‘Cookie Regulation FAQ’, along with IAB Europe’s (updated: April 2021) position paper on the proposed ePrivacy regulation below.

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