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The lowdown on the leaked copy of the revised ePrivacy Directive


Planned changes to the European rules governing digital privacy - The ePrivacy Directive – are under review and a leaked version has been circulated which shows some of the potential changes that may influence rules for marketers.

The ePrivacy Directive is the piece of EU legislation that informs the UK’s own Privacy and Electronic Communications Regulations (PECR). A Directive means EU member states are allowed some autonomy to alter the law, so the rules around electronic communications vary across the EU. The new law will be upgraded to a Regulation meaning a greater level of consistency between member states.

The EU Commission initiated this review with the General Data Protection Regulation (GDPR) in mind, but also in light of technological developments. In the first couple of paragraphs the document references new internet based communication services such as Skype and Facebook Messenger, which will be included within the scope of the Regulation.

New rules could complete the GDPR changes by setting specific rules for the processing of personal data for electronic communications, the European Commission sees. Any areas not specifically addressed by the new ePrivacy rules will be covered by the GDPR.

A consultation informed EU Commission thinking, the text saying that 90% of consumers groups and activists favoured opt-in for direct marketing calls but 73% of industry responses were in favour of an opt-out regime. The UK DMA was among the 73%.

The Regulation calls for opt-in consent for live marketing calls but has a provision that allows member states to use an opt-out consent if they choose to do so.

Article 16 Paragraph 1 states, “The use of electronic communications services by natural or legal persons for the purposes of transmitting direct marketing communications is allowed only in respect of end-users who have given their prior consent.” In essence prescribing opt-in consent for live marketing calls.

However, in Article 4 the new rules permit member states to create their own domestic legislation allowing live marketing calls to individuals so long as they have not expressed their objection to receiving such calls. Therefore, the UK would be able to maintain its current approach to live marketing calls and the Telephone Preference Service would remain in place.

These proposed new rules maintain the existing customer soft opt-in for email marketing. If an organisation obtains an email address from its customer during the sale of a product or service then it may use that email address for direct marketing purposes for similar products and services. A clear opt-out must be provided in each future email to the customer.

The EU Commission had originally stated that they wished to conclude the legislative process before May 2018 when the GDPR comes into force. Ideally, there will be as little time as possible between the two new rules coming into force.

While the GDPR has a two year grace period, the new ePrivacy rules will only have a six month grace period for organisations to adapt. If the legislative process is wrapped up quickly, which still is a big if, then the new rules come into force at a similar time to the GDPR.

A more detailed analysis of the legislation will follow later this week.

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