EU Parliament misses opportunity to achieve a balanced ePrivacy Regulation

The EU Parliament decided in a vote today, confirming it is ready to begin trilogue negotiations regarding the ePrivacy Regulation on the basis of the LIBE Committee report.

A problematic report for the marketing industry, the DMA have recently shared our concerns with the LIBE report.

The house confirmed the negotiation mandate by 318 vote against 280 (with 20 abstentions). An extremely close result, but unfortunately not in the favour of the marketing sector. The Parliament is quite clearly split over ePrivacy and this weakens its negotiating hand at trilogue.

After a split vote on the report presented by rapporteur MEP Marju Lauristin in the LIBE Committee, MEPs from the ECR and EPP groups requested the vote on the mandate for the entire Parliament.

Despite various forward looking amendments discussed over the summer, the compromised version of the report includes many restrictive provisions, which could crucially impact the direct marketing industry as well as advertising, media, digital services and innovations.

This is missed opportunity for the Parliament to enter negotiations with a better balanced text.

Trilogue negotiations are when the EU Parliament and Council of Ministers debate what the final text will be.

This process is not likely to start until sometime in Q2 2018 as the Council of Ministers have not made enough progress debating possible amendments. A progress report from the Council is due by the end of this year, which may give some indication of their thinking.

Trilogue negotiations are likely to be contentious. The Council has traditionally adopted a more business friendly tone than Parliament. The ePrivacy Regulation is proving to be as hotly debated as the GDPR was.

The vote today weakens the hand of Parliament negotiating team as they do not have a substantial mandate from MEP’s, who are starkly divided.

The DMA outlined its main concerns in a communication to all UK MEP’s prior to the important vote:

• Article 16 of the Regulation would require organisations to have a prior opt-in consent for business-to-business (B2B) corporate marketing. Currently, marketing to limited or public limited companies is carried out on an opt-out basis in the UK. The ePrivacy Regulation should keep the status quo where Member States can decide how to regulate B2B direct marketing.
  
• Consent is the only legal ground for processing in the Regulation. The GDPR has six legal grounds for processing personal data and these should be referenced too. Legitimate interest should be included as a valid legal ground for processing data in suitable circumstances. Limiting the legal ground for processing to consent only is restrictive and goes against the spirit of the GDPR, which adopts a risk-based approach. The proposal does not take into consideration the context in which the processing takes place, nor the impact on the individual’s privacy, nor the potential to increase safety through innovations such as driverless cars.
  

• Online publishers may be forced to provide content to customers that refuse to consent to cookies and advertising. Article 8.1 of the ePrivacy Regulation should be more flexible, and include the legitimate interest of the marketers, with the appropriate safeguards as a legal basis for processing data, as an alternative to the user’s consent.
  
• The definition of direct marketing should accurately reflect the sector. The proposed definition in the ePrivacy Regulation refers to ‘any form of advertising sent to one or more identified or identifiable end user…’ Additionally, some discussion also look into the possibility to also qualify as direct marketing any form of advertising ‘sent, served or presented…’
  
  This approach creates a very broad definition of what qualifies as direct marketing, which is far from the actual practices of our industry. Additionally, as users always have the ability to object from receiving direct marking, a broad definition might give the impression that individuals have the possibility to object from any form of advertising or marketing.
  
• Telemarketing is an essential component of the direct marketing industry, enabling a wide range of activities, from local SME businesses contacting their B2B and B2C customers to publishers contacting subscribers asking them to renew their subscriptions.

The lobbying focus on the DMA now turns to the Council where there is still opportunity to achieve a much more balanced ePrivacy Regulation.