The European Commission has released a new set of proposals to replace the ePrivacy Directive (Directive 2002/58/EC). The proposals seek to update the directive which deals with privacy protection and users of electronic communication services.
The proposals are aimed at increasing trust in the digital single market and aligning ePrivacy laws with the more stringent rules under the General Data Protection Regulation (GDPR) going into effect May 2018.
The Directive is designed to harmonise the privacy regime so all individuals and businesses in the EU are subject to a unanimous high level of protection.
What to expect
There are two key changes with the new ePrivacy Directive.
- Certain privacy rules will extend in scope from traditional telecommunications operators to over-the-top (OTT) web services such as Facebook, imessage, WhatsApp, Viber and Gmail.
- Cookies laws will be streamlined and simplify the overload of consent requests.
Unsolicited electronic communications
These will be banned to the extent that a user has not provided consent. The caveat being that marketers can continue using electronic details obtained on the sale of a product to notify the consumer of a similar product, if they were given the opportunity to opt out, but did not. Finally, all marketers will be obliged to display their phone number when calling.
The proposals also clarify that non-privacy intrusive cookie services that improve internet experience for example, storing shopping-cart history, do not require consent by users.
The concept of privacy by design is also introduced. This provides that each new service or business process that makes use of personal data must take the protection of such data into consideration and allow users to opt for higher or lower level of privacy.
Steps for Compliance
These new regulations haven’t been approved by the European Parliament and the European Council to date, but the industry assumes that the ePrivacy Directive will come into force at the same time as the GDPR in May 2018.
Provisions in the ePrivacy Directive indicate that penalties for breaching will be consistent with the GDPR and expose business to fines of up to €20 million or 4% of annual turnover. With that in mind, businesses should ensure they make steps toward adequate preparation for compliance.
Here are a few tips for UK businesses to get started on compliance.
- Assess any collected information and ensure that users are notified if you’re monitoring or storing location data.
- Amend cookie policies where necessary to provide for consent. Users must be given an option to opt out, by positive action rather than a pre-ticked box. If the user refuses, you can’t prevent them from using the website. This language derives from the GDPR which states that the ‘user must not suffer disadvantages’.
- Users of software for electronic communications should also be given an option to prevent third parties from storing their information upon installation of the software.
- If you’re a business that doesn’t have a physical presence in the EU, you’re still subject to the regulation and are required to appoint a representative in a member state.
- Review your marketing practises for all business affected.
The information in this blog post is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from JAG Shaw Baker or the individual author, nor is it intended to be a substitute for legal counsel on any subject.