European Union: Article 29 Working Party And The EDPS Advise That EU Should Preserve And Not Reduce ePrivacy Rules

Last Updated: 4 October 2016
Article by Bird & Bird's Labour & Employment Group

On 19 and 22 July 2016, the Article 29 Working Party (A29WP) and the European Data Protection Supervisor (EDPS) provided Opinions on the review of amended Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector (the ePrivacy Directive).

Both the A29WP and EDPS support the European Commission's proposal to "modernise, update and strengthen" the provisions of the ePrivacy Directive. 

  • Opposition to industry suggestions that the ePrivacy regime is no longer needed: Both Opinions take the contrary view - the high standards in the ePrivacy Directive should be maintained: there remains an ongoing need to have specific rules to "protect the confidentiality and security of electronic communications", and to "complement and particularise the requirements of the GDPR" as it applies to these communications.
  • 'Functionally equivalent' means of communication and private messaging should be covered: The ePrivacy Directive was drafted with traditional forms of communication (fixed, mobile, Internet, email) in mind; it recognised that such service providers had a privileged position allowing them to monitor individuals' communications in real time and to draw up detailed profiles about them. However services have developed. VoIP services, or chat functions within other information services, are not clearly covered by the ePrivacy Directive, but pose the same risks. Further, individuals see all such services as "functionally equivalent". Individuals must therefore be covered by the same level of protection, regardless of their chosen means of communication. This should be the case whenever the service provider takes the position of a neutral carrier.  
  • Wi-Fi hot spots to be subject to confidentiality requirements: The confidentiality of users' communications on publicly accessible private networks (e.g. Wi-Fi in airports, corporate Wi-Fi access offered to visitors and guests, public hotspots, etc.) should be protected. The A29WP Opinion notes that it had previously advocated against treating publicly accessible private networks in the same way as public networks – because it did not wish to subject more providers to mandatory communications data retention regimes. However, with the invalidation of the Data Retention Directive (2006/24/EC), this concern has been removed, meaning that the A29WP is able to give greater emphasis to the obligations owed by such providers. The A29WP suggests that the new instrument contains a commitment by the EU that it will never re-introduce data retention at a pan-European level.
  • Consent requirement for traffic and location to be preserved, strengthened and broadened: The concepts of traffic and location data should be merged and there should be a general requirement for consent for use of 'metadata' (it is unclear what this would encompass). Any use of such data (i.e. not just by public electronic service providers) should require consent. Existing exemptions for processing which is strictly necessary to deliver the requested service and for security purposes should be maintained. Other exemptions could be introduced for low privacy-intrusive types of processing, subject to rules around data minimisation and anonymisation.  
  • Interception and communications secrecy to be strengthened and updated: The new text should make clear that communications need not be one-to-one to be protected by secrecy laws: a conference call or message sent to a defined group of recipients should also attract protection. The A29WP even makes the (mathematically ludicrous) suggestion that protection should be offered to any communication with a finite number of parties.  
  • The long-standing distinction between content and traffic should be reviewed: The EDPS notes the evidence that traffic data can be as revealing as content. Both note that clear distinctions between traffic and content make sense in the world of voice calls, but breakdown online – where a destination URL could be both a party to a communication (so traffic data) and content at the same time. Both suggest rethinking on this point, with detailed examples of what should be viewed as traffic data and what as content. 
  • Both also advocate a broad interpretation of interception – so that technical matters such as injecting an identification code into a communication (i.e. an advertising ID) should count as interception. 
  • Complete or partial ban on 'cookie walls': The requirement for consent in Article 5(3) (the cookie consent rules) should be "maintained and strengthened". Consent must be "freely given" as per the GDPR, and legislators would do well to contemplate a complete or partial ban on so-called "cookie walls" (i.e. situations in which a user who does not accept cookies is denied access to a website). Both recommend adding a non-exhaustive list of examples where such walls would not be permitted (e.g. where the provider of the service is in a dominant position or government funded; where a website or app auctions its advertising space and unknown third parties may track and monitor users through the website or app; for sites which could lead to inferences about sensitive data; or in other cases where GDPR suggests that consent will not be freely given (e.g. where there is imbalance of bargaining power)). Both Opinions follow the lead of the GDPR to state that consent must be 'granular' – bundled consent will not be valid and elements of processing which are separate should have separate consents. News media are singled out by the A29WP for criticism in this regard. The A29WP acknowledges that their economic survival is important, but that 'invasive tracking' is not the way to achieve this.  
  • Cookie control tools with privacy-friendly default settings: The onus for cookie compliance should not only fall on publishers. Both propose the involvement of browser and application manufacturers so that they can offer cookie control tools such as Do Not Track (or equivalent). Such tools must be offered with privacy-friendly default settings and be actively configured by the user. The EDPS also states that users' rights to install ad-blockers should be protected.
  • First-party analytic cookie exemption: The revised ePrivacy rules should confirm the scope of the current first-party analytic cookie exemption developed by the A29WP in its Opinion 04/2012. Such an exception should "be limited to cases where the use of such first party analytics cookies is strictly limited to aggregated statistical purposes". The data should also be irreversibly anonymised (no separate ability for a service provider to access; hashing or encryption is not enough); any service provider must act as a data processor; analysis must be limited to a single area (so no cross-device or cross-website analytics); there must be an easy opt-out and no collection of sensitive data.
  • Extended protection from other forms of tracking: Cookie provisions should not be limited to cookies. Device fingerprinting is on the radar of the EDPS, whilst the A29WP talks about the need to extend similar protections to MAC addresses which are collected to track users. 
  • Both also talk about the need to extend security from security for a communication to security for the device – so software pre-loads and pushed information should not be allowed. Rather than forcing an update, the user should be notified and allowed to complete the installation himself. The EDPS calls for additional security measures (e.g. security standards) for actors such as networks, providers of network components, IoT devices, etc.
  • End-to-end encryption (without "back-doors"): For the EDPS, this should be permitted and encouraged to allow users to safeguard their communications. Conversely, "decryption, reverse engineering or the monitoring of communications protected by encryption should be prohibited". The A29WP suggests the new instrument should include a right for users to encrypt their communications. 
  • No more specific mandatory breach regime for telcos/ISP: This industry specific regime provided by the current ePrivacy Directive should be deleted and replaced with the general breach notification regime provided under the GDPR – with reports of breaches going to data protection authorities.
  • Harmonisation between competent regulators (e.g. DPA vs. telco regulator) (with bigger role for DPAs): At the moment, some elements of enforcement in some countries fall to the data protection authority, and some to telecoms authorities or others. The EDPS suggests that where a national data protection authority can efficiently perform a task, the same national data protection authority should be considered to be the competent authority for ePrivacy matters. Unsurprisingly, the A29WP also suggests that its members should be the enforcement agent for ePrivacy matters.
  • Unsolicited communications big bang: Consent should be required from recipients before they receive any type of unsolicited commercial communication, regardless of (i) the "means" (e.g. email, voice calls, texts, but also direct-messaging (i.e. within an information society service)) and (ii) behavioural advertisement. The EDPS also suggests that the level of protection should be the same irrespective of whether in the context of B2C or B2B operations (this is less clear in the A29WP Opinion, which does mention harmonisation of rules on B2C and B2B but not in the section on direct marketing). In addition, the concepts of "existing relationship" and "similar products and services" with regards to soft opt-in considerations and "commercial communications" should be clarified. The A29WP notes that the burden of proof for consent should be with the person commissioning the communication, who should be required to keep time-stamped evidence of consent, together with a record of what was shown to the user to obtain consent. Consent should also be easy to revoke and there should be a mechanism for users to revoke consent across an industry or a sector. 
  • Directories of subscribers: The right for subscribers to object to the publication of their details in public (printed or electronic) directories should be maintained and expanded so that it applies to all kinds of directory services. In addition, this right should apply to other details such as e-mail addresses or user names used in the context of 'reverse lookup' functionalities.
  • Calling Line Identification: This should also be maintained – and the A29WP suggests possible strengthening, such as inclusion of rules preventing CLI spoofing. 
The EDPS Opinion is longer – what else does it cover? 
  • Territorial scope and applicable law: To avoid any confusion, the new ePrivacy rules should "have unambiguously the same territorial scope compared with the GDPR", subject to some technical adjustments.
  • Duty for organisations to issue government access reports: The EDPS calls for an obligation borne by organisations to disclose, at least periodically and in aggregate form, law enforcement and other government requests for information.
  • Two legal grounds for the revised ePrivacy regime: The EDPS proposes that the European Commission "consider a dual legal basis for the new legal instrument for ePrivacy". This, it suggests, should be both Article 16 of the Treaty on the Functioning of the European Union (TFEU) (the legal basis of the GDPR), and Article 114 TFEU on approximation of laws (the legal basis of the ePrivacy Directive). According to the EDPS, a single basis (Article 16) would not suffice, as "the new provisions will not only 'particularise' some provisions of the GDPR, but will also 'complement' it with provisions that are not limited to the protection of personal data".
  • Goodbye directive, hello regulation: For the revised ePrivacy rules, the EDPS recommends using a regulation instead of a directive. This suggestion is made on the basis that such an approach would, for instance, be more consistent with the GDPR. In the meantime, the EDPS recognises that Member States should be left with room for manoeuvre (without indicating for which topics). However, for the EDPS, the ability of Member States to deviate should be kept to the minimum necessary. The A29WP states that it does not mind which instrument is used, as long as variation is minimised.
  • Framework Directive clarification needed: The EDPS also suggests that the European Commission should clarify how it intends to re-structure the relationship between the revised ePrivacy regime and the Framework Directive (2002/21/EC) dealing with electronic communications.

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