As part of its vision to achieve a digital single market, the European Commission has taken the first steps in reviewing the Privacy and Electronic Communications Directive (the "ePrivacy Directive"), by launching a consultation on the effectiveness, relevance, coherence and efficiency of the Directive as well as suggesting possible future reforms.

The ePrivacy Directive was implemented in the UK through the Privacy and Electronic Communications (EC Directive) Regulations 2003, which were subsequently updated to reflect amendments to the E-Privacy Directive to deal with the use of cookies.

The ePrivacy Directive complements the existing Data Protection Directive (95/46/EC) and is concerned with the protection of personal data being processed in the electronic communications sector. The E-Privacy Directive essentially sets out additional rules in relation to electronic communications.

The timing of the consultation is unsurprising following final approvals of the EU General Data Protection Regulation ("GDPR"), which will overhaul the current EU data protection landscape.

This is reflected in the Commission's objectives, which are aimed at ensuring a high level of protection for EU citizens whilst promoting a level playing field for those operation within the electronic communication sector:

  • promoting consistency with the new GDPR;
  • evaluating the need (if any) to broaden the technological scope of the Directive in light on recent internet-based communication providers; and
  • enhancement of security and confidentiality of communication in light newer tracking methods, and in particular the need to ensure confidentiality of whole communication chains.

In particular, given the strict new rules in the GDPR on consent and the prohibition on the use of pre-ticked boxes, it seems inevitable that the so called "soft opt-in" for electronic marketing under the PECR will not be permitted following the review.

It is also reasonable to expect enforcement powers to be aligned with the enhanced powers to fine under the GDPR and the use of a regulation to ensure greater consistency in the laws across the EEA.

The consultation is open until 5 July 2016. The consultation takes the form of an online questionnaire. You can submit your response through the Commission's website.


Martin Sloan