Better Regulation: Rethinking (or getting rid of?) the ePrivacy Directive” – going past the soundbites, this is a hard look at the ePrivacy rules and whether they should still exist today. Readers will know I have often criticised the European Data Protection Board’s views on Article 5(3) of the ePrivacy Directive (the “cookie” rule) because of what I view as maximalist interpretations – but there is much more in the ePrivacy Directive than just that provision.
The aim of this first piece in my new “Better Regulation” series is to explore various laws and topics and to examine what can – or should – be done (in my view) in relation to the laws applicable to the digital economy.
I am not saying “let’s get rid of the ePrivacy Directive tomorrow” but rather taking a hard, critical look at each key provision (4 [security], 5(1) & 5(2) [confidentiality of communications], 6 & 9 [traffic data & location data], 5(3) [cookies / storage & access] and 13 [anti-spam / unsolicited communications]) to see how they work in the context also of other legislation that has been adopted since the last revision of the ePrivacy Directive in 2009. Some of the conclusions are nuanced – there may be value in the ePrivacy Directive’s *actual text* but some interpretations might risk rendering actual compliance impossible (and are thus ultimately not beneficial to online privacy).
There are some references in there to the ePrivacy Regulation, but not many. The focus is really on which laws exist today, from the GDPR to NIS2 (cybersecurity) and the Data Act.
Because it’s not a short piece (24 pages long), I am publishing it first in full here so you can download it, print it etc. EDIT: LinkedIn Article format available here: https://lnkd.in/eJ9GPWYT
If you can’t be bothered reading the whole article, the first page has a form of summary, but you will want to read the whole thing – the entire purpose of this article is not to be just a soundbite but a more in-depth look.
As usual, comments very welcome (and opposite views too).
Did this analysis get you thinking? Reach out!
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