EU Council vows to continue ePrivacy discussions

The Commission had originally hoped to have the ePrivacy Regulation ready in time for GDPR but the debate is dragging on within the Council of Ministers.

Member states shared their concerns in a meeting of the Council of Ministers on Monday 4 December and in spite of positive progress made under the Austrian Presidency, the substantive issues from a marketing perspective are yet to be addressed.

However, a broad majority of member states wish to continue with discussions and are positive about the progress made under the Austrian Presidency. Only Cyprus, Estonia, Portugal and Spain felt the Council should push for a rapid adoption of the text.

While the Commission is disappointed at the Council’s progress so far, claiming that any further delay will only result in negative consequences. Commission Vice-President, Andrus Ansip, who leads on legislation relating to the digital single market said that the extension of the law to internet-based services is imperative.

The UK delegation reiterated that they take the right to privacy very seriously but that ePrivacy needs to be aligned with GDPR and further adopt a risk-based approach. Many member states made a similar criticism during the session and thought inconsistency between GDPR and ePrivacy was a major problem. Furthermore, the UK felt that without a risk-based approach the legal bases for processing could be negatively impacted.

The fact that consent is the only legal ground from GDPR referred to in ePrivacy is a point of concern for marketers as it is an overly restrictive position. The DMA has been lobbying for legitimate interest to be included, as well as the other legal bases in GDPR.

Another concern for the DMA is the requirement for business-to-business marketers to ask for consent before reaching out to prospects. A change that would severely inhibit organisations ability to attract new clients and act as a barrier to market for smaller firms. Italy and Slovenia mentioned the importance of clarifying how ePrivacy would impact business communications.

Progress is slow and it now seems highly unlikely that the Council will agree on a general approach before the EU Parliament elections in May 2019. This could result in a further delay as the new Parliament would need to decide whether to adopt the position of the old Parliament or to re-open the file.