European Union: The Impact Of Privacy Rule Changes

Last Updated: 28 March 2017
Article by Valerie Surgenor

The European Commission has proposed a new e-Privacy Regulation that will replace the current directive and overhaul the rules in relation to privacy and electronic communications.

The Commission intends to finalise and implement the e-Privacy Regulation in alignment with application of the new General Data Protection Regulation (GDPR) on 25 May 2018.

Organisations should take note of the upcoming changes and begin preparations now to ensure compliance by that date.

Why are the rules being changed?

The rules are being updated for a variety of reasons including the need for alignment with the more stringent rules to be introduced by the GDPR; harmonisation of rules across the EU; and technological and economic advancements since the last revision of the e-Privacy Directive, which has seen both businesses and consumers rely on internet-based services enabling inter-personal communications (including VOIP, instant messaging and web-based e-mail services).

When will the changes take place?

The European Commission intends to finalise and implement the e-Privacy Regulation in alignment with application of the GDPR on 25 May 2018.

What are the main changes?

One set of rules: The e-Privacy Regulation will apply directly in a uniform way across all EU member states – this is the same approach as adopted by the GDPR. This differs from the current e-Privacy Directive, which was implemented into each member state's law by national legislation, and via the Privacy and Electronic Communications Regulations (PECR) in the UK.

Territorial reach: In the same way as the GPDR, the proposed e-Privacy Regulation will have extra-territorial effect and will apply to the processing of electronic communications data carried out in connection with the provision of electronic communications services in the EU, irrespective of whether the actual processing takes place in the EU.

Expanded scope: In line with the aim to keep up with technological developments, the e-Privacy Regulation adopts a broad definition of "electronic communications services" so that the new rules apply not only to providers of the traditional telecoms services but also to providers of services that run over the internet (referred to as "over-the-top" or "OTT" service providers). This means that the new rules will apply to instant messaging providers (such as WhatsApp), social media messaging (like Facebook Messenger), VOIP (for example Skype) and web-mail (such as Gmail).

Rules on cookies: The rules on cookies will be changed and streamlined under the e-Privacy Regulation. The circumstances in which consent is not required appears broader and non-privacy intrusive cookies that merely improve internet usage (for example to remember shopping cart history) will not require consent at all. The regulation incorporates a more user-friendly tool that supports the use of in-built browser settings to express consent, which could reduce the need and use of cookie banners, and requires that software providers integrate settings into their products which allow users to opt-in and opt-out easily.

Direct marketing: Under the Regulation, electronic communications data can only be used for the purpose of direct marketing if the end-user has given consent for this specific purpose. The ability to object to data being used for direct marketing should be given when the data is collected and any time following that in which direct marketing is sent to the individual.

Privacy by design and impact assessments: In line with the GDPR, the e-Privacy Regulation advocates privacy by design – which means that organisations will be obliged to adopt an approach that promotes privacy and data protection compliance from the outset.

Enforcement and fines: Currently the UK's Information Commissioner's Office (ICO) can fine organisations up to £500,000 for breaches of PECR. The penalties under the e-Privacy Regulation will greatly increase as they align with the higher GDPR fines, namely:

  • the higher of €20m or 4 per cent of an organisation's total worldwide turnover and covers for example breaches related to time limits for erasure of data and unlawful processing
  • higher of €10m or 2 per cent of an organisation's total worldwide turnover and covers breaches associated with cookies and consent and privacy by design obligations

What can you do?

Whilst the e-Privacy Regulation is in draft format, an ambitious deadline of 25 May 2018 has been set, and there are some things that organisations can do to prepare (just as they prepare for the GDPR):

  • Review policies (especially cookie policies) and procedures to assess whether they would comply with the new requirements under the e-Privacy Regulation (and the GPDR).
  • Consider carrying out privacy impact assessments at the beginning of a project so that privacy is "baked" into the process from the beginning.
  • Ensure that consent is sought appropriately and that it is an affirmative indication of the individual's permission to obtain, store, and/or process data.

Whether the e-Privacy Regulation remains part of UK law post-Brexit will need to be decided; however, in terms of timing, it is likely that it will come into force before Brexit negotiations are concluded, so organisations should not delay in preparations.

As featured in The Scotsman.

© MacRoberts 2017


The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.