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Inside Privacy Updates on Developments in Global Privacy & Data Security from Covington & Burling LLP

Commission Launches Enforcement Proceedings Against 20 Member States on “Cookie” Rules

Posted in Data Breaches, European Union, International, United Kingdom

On July 19, 2011, the European Commission announced that it sent formal requests for further information to 20 Member States regarding their failure to implement the EU’s new package of telecoms rules.  The rules, which include amendments to the E-Privacy Directive to create new consent requirements for the use of most web cookies, were required to be enacted by the Member States by May 25, 2011.

On 19 July, 2011, the European Commission announced that it sent formal requests for further information to 20 Member States regarding their failure to implement the EU’s new package of telecoms rules.  The rules, which include amendments to the E-Privacy Directive (http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:337:0011:0036:EN:PDF) to create new consent requirements for the use of most web cookies, were required to be enacted by the Member States by 25 May, 2011.
As we described here (http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2002L0058:20091219:EN:PDF) previously, the problem is that in many Member States the new measures have been delayed over questions regarding how such consent requirements and breach notifications will work in practice.  Some Member States are also clearly hoping that new browser settings will be developed in order to obtain adequate user consents.  Meanwhile other Member States have implemented the new rules but subsequently also adopted a cautious stance over enforcement of the new rules.  As we reported previously (http://www.insideprivacy.com/international/united-kingdom/on-first-day-of-new-uk-cookie-rules-ico-issues-a-1-year-moratorium-on-enforcement/), the UK’s rules are now in force, but the UK ICO added on the legislation’s first day that it would not substantively enforce the new cookie rules until May 2012.  Although the UK does not appear to be in the firing line, the Commission is clearly taking a dim view of such ongoing concerns.  It is unusual for enforcement proceedings to be launched so quickly and against so many Member States.
The Commission has taken other recent actions in relation to the e-Privacy amendments.  Fearing the birth of new divergences in national laws as they languish in the legislatures, on 14 July, 2011, Commissioner Neelie Kroes launched a new consultation on how the new data breach notification requirements for electronic communication service providers should be carried out in practice.  The consultation (http://ec.europa.eu/information_society/policy/ecomm/library/public_consult/data_breach/index_en.htm) will focus on the circumstances that trigger a data breach notification obligation, the practical procedures that should be followed when making a notification, and the information that such notifications will include.  Responses can be submitted until September 9, 2011.

As we described here previously, the new measures have been delayed in many Member States over questions regarding how such consent requirements and breach notifications will work in practice.  Some Member States are also clearly hoping that new browser settings will be developed in order to facilitate adequate user consents.  Meanwhile, other Member States have implemented the new rules but subsequently also adopted a cautious stance over enforcement of the new rules.  As reported previously, the UK’s rules are now in force, but the UK ICO has indicated that it will not substantively enforce the new cookie rules until May 2012.  Although the UK does not appear to be in the firing line, the Commission is clearly taking a dim view of such ongoing concerns.  It is unusual for enforcement proceedings to be launched so quickly and against so many Member States.

This enforcement action comes on the heels of other significant Commission activity in relation to the e-Privacy amendments.  On July 14, 2011, Commissioner Neelie Kroes launched a new consultation on how the new data breach notification requirements for electronic communication service providers should be carried out in practice.  The consultation will focus on the circumstances that trigger a data breach notification obligation, the practical procedures that should be followed when making a notification, and the information that such notifications will include.  Responses can be submitted until September 9, 2011.