Both the digital landscape and legal frameworks are evolving, and this brings our online interactions to a newer level each day. Therefore, the European Union (EU) takes the steps to ensure individuals data are protected. One of the key legislative tools in this effort is the ePrivacy Regulation (ePR), which is set to replace the outdated ePrivacy Directive (ePD).
The implementation of the ePrivacy Regulation (ePR) will transform how electronic communications are managed and protected in the European Union (EU).
As businesses and individuals are in the middle of this new change, it’s essential to understand what the ePR covers and how it differs from existing laws.
What was the ePrivacy Directive (ePD)?
The ePrivacy Directive (2002/58/EC), introduced in 2002 and revised in 2009, was the EU’s first legislative attempt to protect privacy in the world of electronic communications. ePR focused primarily on traditional telecom services, and it provided rules on data confidentiality, spam control, and the use of cookies on websites.
However, the digital world has changed dramatically since the early 2000s. New technologies such as over-the-top (OTT) services like WhatsApp, video conferencing platforms, and machine-to-machine (M2M) communications have emerged, blurring the lines of what constitutes telecommunication services. The ePD was no longer sufficient to address these innovations and the complexities of today’s digital services.
The e Privacy Regulation was first proposed in 2017. It aims to catch the current technology by extending the scope of privacy protections to cover new technologies and services. the ePR expands its scope to include OTT services, IoT devices, and even browser cookies, all of which are now inseparable components of digital communication. Additionally, unlike the directive, which required individual EU member states to incorporate it into their national laws, the ePR is a regulation—meaning it will be directly applicable across all member states.
How does the ePR differ from the ePD?
1) Broader Coverage
The ePR includes not just traditional telecom providers but also OTT services (e.g., Skype, WhatsApp), IoT devices, and email platforms. It also extends privacy protections to metadata, which was not covered under the ePD.
2) Focus on Consent
The rules on obtaining user consent improves with the ePR, especially for tracking technologies, e.g. cookies. It addresses cookie consent fatigue by providing mechanisms for managing consent at the browser level.
3) Direct Applicability
Unlike the ePD, which causes national implementations, the ePR will be directly enforceable across all EU member states.
4) Stronger Enforcement
The ePR mirrors the enforcement structure of the GDPR, including significant penalties for non-compliance. Businesses can face fines of up to €20 million or 4% of their global annual turnover, whichever is higher, for violations related to communication secrecy and user consent.
The ePrivacy Regulation and GDPR
While the General Data Protection Regulation (GDPR) is a broader framework covering the processing of personal data, the ePR is more specialized. It exclusively focuses on electronic communications privacy, acting as a lex specialis—a law governing a specific area.
For example, while the GDPR covers the general collection and processing of personal data, the ePR provides specific rules about the confidentiality of communications, the use of cookies, and unsolicited marketing.
What this means for Businesses and Individuals
The ePR introduces stricter rules on the collection of communication metadata, cookies, and direct marketing, and failure to comply could result in severe penalties.
For individuals, the ePR brings improved control over their digital privacy. The cookie fatigue caused by constant consent banners on websites is expected to be reduced. In addition, the ePR ensures that their communications, whether through emails, instant messages, or even IoT devices, remain confidential.
Conclusion
With the regulation expected to come into force in late 2024, businesses must start preparing for the changes now. The ePR, in collaboration with the GDPR, will create a comprehensive legal framework designed to protect the privacy and security of electronic communications across the EU. For further insights about the upcoming regulation, check our free whitepaper!