July 13, 2020

Ahead of the first Working Party discussion of the E-Privacy proposal on 13 July 2020, the German Presidency has published a discussion document based on the latest compromise proposal of the Croatian Presidency of 6 March 2020.

The Presidency thinks that agreeing on a General Approach is possible, if agreement can first be reached on the core provisions of the proposal, namely the rules for the processing of electronic communications data in Articles 6 to 6d and for the protection of end-users’ terminal equipment information in Article 8.

On the core articles of the proposal, the Presidency says that it will strive to follow two general principles:

• to ensure effective protection of privacy in electronic communications in accordance with the requirements of the Charter of Fundamental Rights; and
• to ensure the preservation and advancement of innovative business models in the digital world, in particular with regard to the competitiveness of small and medium-sized enterprises and start-ups established in the Union in relation to large market players established outside of the Union.

At the Working Party meeting on 13 July 2020, Member States will be asked to give their opinions on the set of questions concerning Articles 6b, 6c and 8 set out below. Member States will also be asked to submit written comments by 24 of July 2020.

• Article 6b(1)(d) – “vital interest”: including in the light of the COVID-19 pandemic, the Presidency wants to discuss whether provisions on the permission to process electronic communications metadata for the protection of “vital interests” as set out in the latest compromise text are still supported by Member States, or whether further alignment to the GDPR is needed;
• Article 6b(1)(e) and Article 6b(2) – “legitimate interest”/”statistical counting”: the Presidency says that, as a general principle, in order to achieve legal clarity, processing of electronic communications data has to be based on a clear and unambiguous purpose for as long as it is carried out without the consent of the end-user. The Presidency wants to discuss whether Member States are in favour of the provisions as set out in the latest compromise text, which permit the processing of electronic communications metadata on the basis of legitimate interests subject to specific conditions and safeguards, or whether the compromise proposal made under the Finnish Presidency should be used with modified points (e) and (f).
• Article 8: if Member States support allowing access to terminal devices for the sole purpose of a legitimate interest subject to specific conditions and safeguards, the Presidency wants to discuss how the security of the equipment can be ensured, given that this approach would considerably facilitate the installation of software that is frequently seen as a major gateway for malicious software. If Member States prefer the Finnish Presidency’s compromise proposal, the Presidency wants to discuss whether the rules appropriately balance a high level of protection of end-users’ privacy with the legitimate interests of online publishers, given their important role for freedom of speech and media pluralism. If not, what changes need to be introduced to achieve such balance. The Presidency also wants to discuss whether further discussions are needed on Article 8(1), especially in relation to the requirements for access to terminal equipment in connection with the IoT and in relation to the effective protection of end-users’ privacy. If yes, what changes/aspects need to be addressed in the text. Further, the Presidency asks whether further discussions are needed on Article 8(2), and whether access to terminal equipment should be regulated in order to protect vital interests, as in Article 6(1)(d) of the GDPR.

The Presidency notes that, although there is a general understanding that the E-Privacy Regulation should not prevent the application of established measures against child abuse and other serious illegal activities, e.g. terrorism, it notes some elements, such as the scope of and the appropriate legal instrument for the relevant provisions remain highly controversial. The Presidency would therefore like to discuss this issue separately at a later date.

Finally, the Presidency asks Member States to indicate where they see a need for further discussion, for example in relation to Article 2 and the related Recital 8aa or Article 6c, in order to clear the way for a General Approach. To read the discussion document in full, click here.