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Updates on EU’s e-Privacy Regulation: What you need to know
Published on May 24, 2021 AUTHOR PRIVACY RESEARCH TEAM
On 5 January 2021, the Council of the European Union under the Portuguese Presidency released the 14th version of the e-Privacy Regulation. Read our summary of the 14th draft of the e-Privacy Regulation here.
On 10 February 2021, the Council of the European Union agreed on a Negotiating Mandate on the 14th draft. This has happened after 4 continuous years of negotiations. It means that the trialogue negotiations among the Council, the European Parliament and the Commission can begin. Some key aspects of the Negotiating Mandate are as follows:
- The e-Privacy Regulation will cover electronic communications content and associated metadata transmitted using publicly available services and networks as well as cover machine-to-machine and Internet of Things services.
- The processing of electronic communications data is allowed only under limited circumstances:
- Where it is necessary to provide an electronic communications service,
- Where it is necessary to maintain or restore the security of electronic communications networks and services, or detect technical faults, security risks, and/or attacks on electronic communications networks and services,
- Where it is necessary to detect or prevent security risks or attacks on the terminal equipment of end-users,
- Where it is necessary for compliance with a legal obligation to which the electronic communications service provider is subject.
- The processing of electronic communications metadata may take place for the protection of the end-users’ vital interests, for example, for monitoring epidemics and their spread or in humanitarian emergencies, in particular natural or man-made disasters.
- For further processing of electronic communications data for a purpose other than the one it was originally collected, such another purpose must be compatible with the initial purpose and strong specific safeguards must apply to it.
- The end-user should have a genuine choice on whether to accept cookies or similar tracking technologies. Making access to a website conditional on the user’s consent to the use of cookies is allowed only if the end-user is provided an equivalent alternative offer by the same provider that does not involve consenting to cookies.
- To avoid cookie consent fatigue, the end-user should be able to give consent to the use of certain cookie types by whitelisting certain providers in their browser settings.
- End-users who have consented to the processing of electronic communications data shall be reminded of the possibility to withdraw their consent at periodic intervals of no longer than 12 months, as long as the processing continues, unless the end-user requests not to receive such reminders.
- Direct marketing without the consent of individuals is prohibited. Safeguards should be provided to protect end-users against unsolicited marketing communications and allow them to withdraw consent, free-of-charge, at any time.
On 9 March 2021, the European Data Protection Board adopted a statement on the e-Privacy Regulation, welcoming the Negotiating Mandate but also raising some concerns. Some of the concerns raised by the EDPB are as follows:
- The exceptions that allow the access of electronic communications data to ensure network and end-user device security are broad. Such exceptions need to be proportionate and narrowed down to not undermine the end-user’s right to confidentiality and privacy expectations.
- Strong, standardized, and efficient state-of-the-art encryption is a necessity in the modern digital world and there should not be any possible attempts to weaken encryption even for national security purposes.
- There is a need to include an explicit provision on the prohibition of unfair consent practices such as the “take it or leave it” solution (cookie walls).
- One of the bases on which the use of tracking technologies is allowed is when it is necessary for the sole purpose of audience measurement. The EDPB emphasizes that such derogation for audience measurement should be limited to low-level analytics necessary for the analysis of the performance of the service requested by the user and should be solely limited to providing statistics to the service operator.
- The EDPB emphasizes the need to address “consent fatigue” and that browsers and operating systems should put in place user-friendly and effective mechanisms to allow controllers to obtain consent from users.
What’s next?
Our experts at Securiti will continue to closely monitor the negotiation developments to help you prepare for compliance.
The e-Privacy Regulation once made into law, will have potentially significant effects on organizations especially those that use metadata or tracking tools to monitor online behavior. By aligning with the principles of the GDPR, the e-Privacy Regulation aims to create more uniformity and certainty for organizations as to what compliance actions need to be taken.
Failing to comply with the provisions of the e-Privacy Regulation may lead to administrative fines up to 20 million euros or four percent of the company’s total worldwide annual revenue, whichever is greater. Considering such exorbitant potential fines, it is highly important for organizations to proactively manage electronic communications data as per the applicable requirements.
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- Secure fulfillment of data access
- Automate processing of rectification requests
- Automate erasure requests
- Automate objection and restriction of processing requests
- Continuous monitoring and tracking
- Automate People Data Graph
- Meet cookie compliance
- Monitor and track consent
- Assess Qatar DPL readiness
- Map data flows
- Manage vendor risk
- Breach Response Notification
BackSnowflake is a cloud based data warehouse that allows organizations to run large scale data analytics projects to uncover business insights, run or train machine learning models, and modernize their data infrastructure.
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The Amazon S3 (Simple Storage Service) is a web-service which allows for scalable storage solutions for data archival, backup, and recovery purposes.
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Microsoft O365 is the ubiquitous productivity suite for every business worker. Users rely on Office products such as OneDrive and SharePoint to collaborate with their co-workers.
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Organizations want to migrate their on-premises data to cloud data stores to take advantage of scale and flexibility while reducing operational cost of managing on-premises infrastructure. However, due to privacy regulations such as GDPR, CCPA administrators have to ensure that data is migrated in compliance with these laws.
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Protecting sensitive content is a priority for all organizations, however, due to volume of sensitive content and
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While data aids in business decision making, global privacy regulations such as GDPR, CPRA require organization to identify personal & sensitive data & use only for its intended purpose and implement adequate protection.
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The California Consumer Privacy Act (CCPA) was signed into law on June 28, 2018 and is scheduled to come into effect on January 01, 2020. Often compared to GDPR, CCPA protects consumers from mismanagement of their personal data and gives the consumer control over what data is collected, processed, shared or sold.
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The EU General Data Protection Regulation (GDPR) came into effect on May 25, 2018 and changed the global privacy landscape. It has broadened the definition of processing activities and personal data, impacting companies worldwide, and has tightened the rules to obtain consent before processing information.
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The Lei Geral de Proteção de Dados (LGPD) is modeled with similarities to the General European Data Protection Regulation (GDPR) and contains sixty-five articles. It was approved on August 14, 2018 and its validity has undergone several changes, the last relevant fact being MPV 959. LGPD is in effect since September 18, 2020. The sanctions by the ANPD (Brazilian Data Protection Authority) were postponed to August 2021. The LGPD allows people have more rights over their data and expects organizations to comply with their regulations or face heavy penalties or fines.
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The government of New Zealand has recently replaced its long-existing Privacy Act of 1993 with a modernized version, the Privacy Act 2020. The New Zealand Privacy Act 2020 (NZPA) will take effect from December 1, 2020.
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The Personal Data Protection Act, B.E. 2562 (2019) ('PDPA') is Thailand's first consolidated data protection law, which was published in the Thai Government Gazette on 27 May 2019. This law was said to go into effect on 27 May 2020. However, in May 2020, the Thai Cabinet through a Royal Decree has deferred the enforcement of certain data protection provisions of the PDPA until 31 May 2021.
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In order to protect the data of individuals in South Africa, Parliament assented to the Protection of Personal Information Act (POPIA) on 19th November 2013. The commencement date of section 1, Part A of Chapter 5, section 112 and section 113 was 11 April 2014. The commencement date of the remaining sections (excluding section 110 and 114(4)) was 1st July 2020. As per the Regulator’s Operational Readiness Plan the Regulator will be able to take enforcement actions for the violation of POPIA by July 1st 2021.
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The DIFC Data Protection Law, 2020 lays down regulations regarding the collection, disclosure and processing of personal data in the DIFC, a special economic zone in Dubai. It also gives rights to individuals whom the personal data relates to and provides power to the Commissioner of Data Protection to enforce the law, enact regulations and approve industry-wide Codes of Conduct.
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The Australia Privacy Act 1988 (Privacy Act) was enacted to protect the privacy of data subjects and regulate how Australian agencies and organizations with an annual turnover of more than $3 million handle their customers’ personal information.
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Singapore’s Personal Data Protection Act (PDPA) comprises various provisions governing the collection, disclosure, use, and care of personal data. It recognizes the rights of individuals to have more control over their personal data and the needs of organizations to collect, use, or disclose personal data for legitimate and reasonable purposes.
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On April 13, 2000, the Personal Information Protection and Electronic Documents Act (PIPEDA) received Royal Assent. It came into force in stages, beginning on January 1, 2001. PIPEDA came fully into effect on January 1, 2004. The legislation applies to organizations that collect, use or disclose personal information in the course of commercial activities.
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After the invalidation of Privacy Shield, many companies are relying on the SCCs in order to continue transferring data of EU citizens to companies based in countries who are not deemed adequate for data transfer.
After the CJEU judgement, it is clear that these companies have to conduct Risk Assessments with the data recipients in these countries in order to ensure they have enough controls to mitigate any potential data or regulatory risk.
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On 2nd March, 2019, the Department of Health—Abu Dhabi (DoH), launched the Abu Dhabi Healthcare Information and Cyber Security (ADHICS) Standard. This is the first standard that aims to provide healthcare professionals and entities a comprehensive guide to the regulation of healthcare data in Abu Dhabi. This law ensures the highest levels of privacy and security of patients’ data, in line with international standards, is maintained.
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On January 31, 2020, the government of Saudi Arabia issued the Executive Regulations to the Saudi E-Commerce Law 2019 (“ECL”) that was in effect since October 2019. The Executive Regulations together with the ECL (“Law”) aim to protect consumers’ personal data by requiring organizations to take appropriate technical and administrative measures.
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Turkey was one of the first countries to start the trend of legislating data protection. Turkey published “Law on the Protection of Personal Data No. 6698 (LPPD) covering personal data protection on April 07, 2016.” The LPPD is based on the European Union Data Protection Directive 95/46/EC and has several similarities with the GDPR. It aims to give data subjects’ control over their personal data and outlines obligations that organizations and individuals dealing with personal data must comply with. The LPPD has also provided comprehensive guidelines for the transfer of personal data to the third parties.
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In December 2019, India, following several other countries' footsteps on the privacy laws' developments, introduced the Personal Data Protection Bill (PDPB) to regulate the processing, collection, and storage of personal data.
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On 13 October 2020, the National People's Congress of the Republic of China submitted the long awaited draft of the Personal Information Protection Law (Draft PIPL) to the Standing Committee meeting for preliminary review. This draft was officially released for the public consultation on 21 October, 2020. The consultation period will last until 19 November 2020.
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The Irish Data Protection Act, 2018 (Irish DPA) implements the General Data Protection Regulation (GDPR) and transposes the European Union Law Enforcement Directive in Ireland. Since it incorporates most of the provisions from the GDPR and the Law Enforcement Directive with limited additions and deletions as per the national law, it is considered to be the principal data protection legislation in Ireland.
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The Personal Data (Privacy) Ordinance (Cap. 486) as amended in 2012 (the “PDPO) is the primary legislation in Hong Kong which was enacted to protect the privacy of individuals’ personal data, and regulate the collection, holding, processing, disclosure, or use of personal data by the organizations.. The Data Protection Principles ( the “DPPs or DPP ''), which are contained in Schedule 1 to the PDPO, outline how entities should collect, handle, disclose, and use personal data.
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In 2012, the Philippines passed the comprehensive privacy law, Data Privacy Act 2012 Republic Act. No, 10173 (the "DPA"). The DPA recognizes the rights of individuals to have more control over their personal data while ensuring a free flow of information to promote innovation and growth.
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The United Arab Emirates (UAE) has a Federal Telecommunication Law ( Federal Law) which requires that a company must hold a license in order to provide public communications services and operate public telecommunication networks. Under this Federal Law, a Telecommunication Regulatory Authority (TRA) was established which regulates the telecommunication sector in the UAE.
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South Korea has a general law and several special laws that cover data protection and individuals' privacy. South Korea's data protection regime is considered one of the strictest data protection regimes owing to its notification requirements, opt-in consent, extensive data subject rights, mandatory data breach notifications, and heavy sanctions in case of non-compliance.
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The Act on the Protection of Personal Information (the "APPI'') regulates personal related information and applies to any Personal Information Controller (the “PIC''), that is a person or entity providing personal related information for use in business in Japan. The APPI also applies to the foreign PICs which handle personal information of data subjects (“principals”) in Japan for the purpose of supplying goods or services to those persons.
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Qatar is the first gulf country that has passed a national data privacy law and has paved the way for all other gulf countries to follow suit. In 2016, Qatar enacted Law no. 13 Concerning Personal Data Protection (the “DPL”). Qatar became the first Gulf Cooperation Council (GCC) member state to issue an “European Style” applicable data protection law. The DPL establishes a certain degree of personal data protection, provides data subject rights, and prescribes the guidelines for organizations for the processing of personal data within Qatar.
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