EU Presidency issues amended proposal on EU e-Privacy Regulation

The EU Council Presidency put forward to Member States, on 18 September, an 88-page compromise proposal on the e-Privacy Regulation with considerable changes and amendments.

The Finnish Presidency proposes a new Article on Processing of electronic communications data for the purpose of detecting, deleting and reporting material constituting child pornography.

There are some changes to the provisions on e-mail marketing since the July version. The text now says that ‘it is reasonable to allow the use of contact details for [an] electronic message within the context of an existing customer relationship for the offering of similar products or services. Such possibility should only apply to the same company that has obtained the contact details for electronic message in accordance with Regulation (EU) 2016/679 [GDPR].’

The proposal also includes a definition of direct marketing: ‘direct marketing communications’ means any form of advertising, whether written or oral, sent via a publicly available electronic communications service directly to one or more specific end-users of electronic communications services, including the placing of voice-to-voice calls, the use of automated calling and communication systems with or without human interaction, electronic message etc.’

“Crucially, the current definition does not include the words ‘or presented’ [via a publicly available electronic communications service] or ‘identified or identifiable’ specific end users. The precise implications of how the definition will impact marketers is still a little unclear, but the exclusion of these words will be welcomed by marketers, as their inclusion would pose difficulties for targeted and online behavioural advertising, including for brands that advertise to their customers via social media ‘newsfeeds’, Mark Hersey, Associate at Lewis Silkin Commercial and Data Protection & Privacy Practice told PL&B.

Member States are encouraged to introduce by means of national law or present a specific code or prefix identifying the fact that the call is a direct marketing call to improve the tools provided for the end-users in order to protect their privacy in more efficient manner. Using a specific code or prefix should not relieve the legal or natural persons sending or presenting direct marketing call from the obligation to present their calling line identification, the text says.

Other changes include revisions to Article 6b on Permitted processing of electronic communications metadata, and importantly an amendment Article 6c [Previous art 6(2a)] on Compatible processing of electronic communications metadata.

There are numerous other amendments. The text will be next discussed in the WP TELE meeting on 24 September, when the discussion will focus on:

  1. the child imagery issue, based on the options presented in this proposal
  2. articles 1 to 4a and 18 to 29.

See the amended proposal.