According to a leaked draft, on November 4, 2021, the Council of the European Union (“Council”) and the European Parliament (“Parliament”) agreed a number of amendments to the following three chapters of the draft ePrivacy Regulation, which will replace the ePrivacy Directive 2002/58/EC and has been pending since January 2017):

  • Chapter III (End-Users’ Rights to Control Electronic Communications) – this chapter is expected to regulate: (i) the presentation of calling and connected line identification (g., whether the device’s screen identifies the number of the incoming call); (ii) the blocking of unwanted malicious or nuisance calls; (iii) the inclusion of information, including personal data, in publicly available directories; and (iv) unsolicited direct marketing communications (e.g., spam email and SMS texts).
  • Chapter V (Remedies, Liability and Penalties) – this chapter is expected to regulate: (i) remedies; (ii) right to compensation and liability; (iii) general conditions for imposing administrative fines; and (iv) penalties.
  • Chapter VI (Final Provisions) – this chapter is expected to regulate the entry into force of the draft Regulation and the subsequent monitoring of its implementation by the European Commission.

However, the Council and Parliament still disagree on a number of significant issues.  For example, the Council and Parliament have not yet agreed on a definition of “unwanted calls”.  They also disagree on the scope of the prohibition for sending direct marketing communications without the recipient’s consent:  the Council intends to apply this prohibition only to communications sent to “natural persons”, while Parliamentarians want the prohibition to apply to sending communications to legal persons (e.g., companies) as well.  The Parliament also seeks to extend the traditional definition of direct marketing (which includes automated calling machines, telefaxes, and e-mails, including SMS messages) to various other types of advertisements, such as “pop-up windows or email-like advertisements” (e.g., push notifications), something not currently endorsed by the Council.

The Council and Parliament plan to hold a second trilogue on November 18, 2021 with the aim of closing the above three chapters, to the extent possible, and moving on to the other chapters of the draft ePrivacy Regulation.  We will continue to monitor and report on the developments in future blog posts on Inside Privacy.

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Photo of Dan Cooper Dan Cooper

Daniel Cooper heads up the firm’s growing Data Privacy and Cybersecurity practice in London, and counsels clients in the information technology, pharmaceutical research, sports and financial services industries, among others, on European and UK data protection, data retention and freedom of information laws…

Daniel Cooper heads up the firm’s growing Data Privacy and Cybersecurity practice in London, and counsels clients in the information technology, pharmaceutical research, sports and financial services industries, among others, on European and UK data protection, data retention and freedom of information laws, as well as associated information technology and e-commerce laws and regulations. Mr. Cooper also regularly counsels clients with respect to Internet-related liabilities under European and US laws. Mr. Cooper sits on the advisory boards of a number of privacy NGOs, privacy think tanks, and related bodies.