Cookies: EU Commission considering more pragmatism for ePrivacy – perhaps there is hope for useful legislative changes. The Commission is holding discussions next week to gather input from civil society and industry regarding the possibility of clarifying consent exemptions under Article 5(3) of the ePrivacy Directive.
As readers may know, I have often written about of the challenges presented by a strict interpretation of the current consent exemptions, coupled with a broad (even overly broad) interpretation of the material scope of that provision.
Privacy-enhancing technologies, privacy-friendly alternatives, inherently necessary business practices, there are many aspects of digital activities that could benefit from a consent exemption but that regulators and certain courts have excluded from their scope.
Often, the justification has been that strict necessity for a service has to be examined from the perspective of the technical delivery to the user, and not from the perspective of the provider. Yet, at the same time, many authorities have recognised that security must be exempt from consent requirements, despite the fact that security is not necessary for the purely technical delivery to the user (protecting the provider first, the legitimate user only second). For more about these inconsistencies, see links below.
Perhaps this will be a chance to resurrect some of the exemptions discussed in the context of the proposed ePrivacy Regulation?
This is not about eroding users’ rights but about recognising that consent is not always the appropriate legal ground (not just under the GDPR but here too), and that sometimes actual harm (or lack thereof) can be a relevant factor. Anti-fraud, aggregated analytics for better services, …, many scenarios deserve proper examination.
As I told POLITICO’s Ellen O’Regan, the Commission’s questions for next week show it realises something needs to be done. I am hopeful we can get better, more workable rules soon.
Further reading:
– “Better Regulation”: Rethinking (or getting rid of?) the ePrivacy Directive
https://lnkd.in/ecAWHZWR
– “ePrivacy challenges – one cookie law to rule them all?
https://lnkd.in/eUTz475T
Data protection
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