5.1. E-privacy regulation in EU
The ePrivacy Regulation (ePR) is a proposal for the regulation of various privacy-related topics, mostly in relation to electronic communications within the European Union. Its full name is “Regulation of the European Parliament and of the Council concerning the respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC (Regulation on Privacy and Electronic Communications).” It would repeal the Privacy and Electronic Communications Directive 2002 (ePrivacy Directive) and would be lex specialis to the General Data Protection Regulation. It would particularise and complement the latter in respect of privacy-related topics. Key fields of the proposed regulation are the confidentiality of communications, privacy controls through electronic consent and Browsers, and cookies.
The scope of the ePrivacy Regulation is still under discussion. According to some proposals, it would apply to any business that processes data in relation to any form of online communication service, uses online tracking technologies, or engages in electronic direct marketing.
The proposed penalties for noncompliance would be up to €20 million or, in the case of an undertaking, up to 4% of the total worldwide annual turnover, whichever is higher. The ePrivacy Regulation originally was intended to come in effect on 25 May 2018, together with the GDPR, but has still not been adopted.
Video: The impact of the European ePrivacy regulation
Difference between Regulation and Directive
- The (new) ePrivacy Regulation will repeal the (current) ePrivacy Directive.
- Contrary to an EU Directive, an EU Regulation is a legal act of the European Union that becomes immediately effective as law in all member states simultaneously.
- The current ePrivacy Directive is a legal act of the European Union that requires member states to achieve a particular result without dictating the means of achieving that result. It has therefore been implemented into national laws and regulations.
- If the proposed ePrivacy Regulation became effective, these laws would be superseded and will (for reasons of clarity) likely be repealed. The ePrivacy Regulation would be self-executing and not require many implementing measures.