A draft of a new ePrivacy regulation from the European Commission was leaked in December 2016. The final version (10/01/2017) has now been published as an official proposal from the EU Commission. The new regulation should replace the ePrivacy Directive 2002/58/EC and flanks the General Data Protection Regulation (GDPR), which comes into force on 25 May, 2018. Unlike the old ePrivacy Directive, the planned ePrivacy Regulation applies directly across all member states and takes priority over national legislation. Associations and players of the online marketing sector, explain Dr Frank Eickmeier and Prof Dr Christoph Bauer (pictured below), have already strongly criticised the proposal, as it will have serious consequences on the internet industry and the information society. What exactly will the unmodified ePrivacy Regulation change, if the proposal is to be accepted?
Opt-in will be compulsory for many cookies
Should the user refuse, the website may not be blocked. In Recital 42 of the GDPR, it states that the design must be such that the user “[…] is in the position to refuse or revoke the consent without suffering disadvantages”. But there are plausible reasons to accept a disadvantage if the user, who does not consent, would be deprived of content on the website. But this isn’t certain because it is currently unclear how a ‘disadvantage’ will be defined.
Opt-out must be possible at any time
The website operator must offer users an opt-out, where they have already granted their consent to an opt-out at any time. In the same regard, website operators must also consider the ‘do not track’ browser setting, because this already establishes the non-consent of the user.
Strict compliance with the new rules of the ePrivacy Regulation will lead to significant expenses for the website operators having to adapt their website. Especially in the case of website monitoring, where companies need to precisely weigh up what forms of data collection require user consent. Intensive negotiations and a lot of lobbying work are expected, before the norm comes into force.