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31-03-2021

E-Privacy Regulation: can we already see the finish line?

publications | Levi Van Dijck

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In the course of February 2021 finally an agreement was found amongst the EU Member States within the European Council regarding a draft text for the E-Privacy regulation which should repeal the Directive 2002/58/EC and also our national legislation concerning a.o. cookies. Following this agreement, the next fase in the European Parliament can start.

This is a big step forward for a matter that has been going on for more than four years. Many countries presiding the EU Council have failed in their attempts to find common ground and many earlier drafts went to the bin. Amongst other reasons, certainly the vast lobbying has played a role in this, given the importance of these rules for (online) direct marketing. The draft text that is published now is not yet the end station for the legislative train, but allows us to see which points will most likely reform our laws regarding cookies and e-communication:

- This new regulation has, not surprising, a strong link with that earlier important regulation, the GDPR;
- It applies to all forms of electronic communication, so amongst others apps like WhatsApp or Snapchat fall within the scope. The principle is that all e-communication if confidential;
- For cookies that process personal data (f.i. tracking cookies) consent is required;
- Cookie walls, pop ups which block access to a website without accepting cookies, are considered illegal, but an exception would be possible if there is an alternative without cookies based on proper reasons;
- The rules for direct marketing would remain more or less the same with consent forming the basis, unless there is a pre-existing relationship and the marketing concerns similar products/services. GDPR must be respected however and an easy opt-out mechanism needs to be foreseen.

Once a final text for the regulation will be adapted, a grace period of two years (as with GDPR) will be foreseen for companies to be able to prepare before the actual regulation enters into force.

Do you have questions regarding the current rules concerning cookies and direct marketing or the changes foreseen by future legislation, contact Astrea through lvd@astrealaw.be.

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