Privacy & Cybersecurity Law Blog

On June 3, 2020, the Presidency of the Council of the European Union (“the Presidency”) published a progress report on the proposed Regulation concerning the Respect for Private Life and the Protection of Personal Data in Electronic Communications and Repealing Directive 2002/58/EC (Regulation on Privacy and Electronic Communications), better known as “the Draft ePrivacy Regulation” (the “Progress Report”).

The Progress Report highlights that the most important modification introduced by the Presidency in the latest draft ePrivacy Regulation is the possibility of relying on the “legitimate interest” ground to (1) process electronic communications’ metadata, and (2) place cookies or similar technologies on end-users’ terminals, subject to specific conditions and safeguards. The Progress Report further reveals that the introduction of the “legitimate interest” ground in the text of the draft ePrivacy Regulation triggered mixed reactions from EU Member States. A number of EU Member States do not want to include this new ground and would prefer reverting to a closed list of permitted processing grounds. Others reacted positively to the new text, considering that it aligns more with the EU General Data Protection Regulation (the “GDPR”), but also warning of the need to maintain the right balance between end-users’ rights and interests and those of providers. In addition, the Progress Report indicates that certain delegations appeared to favor going further in aligning the text of the draft ePrivacy Regulation with the GDPR, while others favored re-introducing some of the deleted processing grounds back into the draft text of the ePrivacy Regulation. Finally, other delegations are asking for more clarity around information society services financed through advertising. Overall, the Progress Report highlights the need for further work on the draft ePrivacy Regulation.

The Progress Report indicates that subsequent deliberations on the draft ePrivacy Regulation were cancelled due to the COVID-19 crisis and that the Croatian Presidency will now work closely with the incoming German Presidency to facilitate further discussions and ensure a smooth handover of the file.