ePrivacy impasse

The ePrivacy Regulation is a poorly worded piece of legislation and one that does not have a clear rationale in some instances. Given that the General Data Protection Regulation (GDPR) will soon come into force and is a landmark piece of legislation with regards to protecting people’s personal data.

The DMA’s initial position was that the ePrivacy Regulation was not necessary because the organisations will have to abide by the GDPR, the gold standard of global data protection law.

The EU Commission’s proposal made matters worse when it published the draft text, which would have far reaching effects on marketing. Legitimate interest is excluded from the Regulation as a valid legal ground, a lack of clarity over whether B2B marketing requires consent and a host of other issues.

Following the Commission draft, the EU Parliament reviewed and amended the text. In a narrow vote the Parliament’s amendments were passed, but in an atmosphere of discontent. Many MEP’s were concerned that the ePrivacy Regulation would negatively impact the European economy. A concern shared by the DMA.

The DMA reached out to all UK MEP’s to raise our specific concerns with them and many were quick to respond, agreeing with our concerns.

These actions have weakened the negotiating hand of the Parliament at trilogue negotiations; where the Parliament and Council debate what the final text of the Regulation will be.

At this point, Parliament are ready to begin trilogue negotiations. However, the Council are not going to be ready anytime soon.

The lack of progress in the Council is not a bad thing from a DMA perspective, given our significant concerns.

The DMA’s lobbying focus is now solely on the EU Council and on the UK Government team taking part in negotiations in the Council. Our GDPR lobbying was similar, and it was by influencing the Council that direct marketing was recognised as a legitimate interest in recital 47 of the GDPR. A huge victory for the marketing industry.

The delay allows for more time to influence the Council and also unearths their concerns with the text. Given the Parliament’s weakened negotiating hand, due to its division, there is reason to be slightly optimistic.

Given the many negative impacts the ePrivacy Regulation could have on marketing and the UK economy more broadly, this is one challenge not to be underestimated.