The European Parliament’s civil liberties committee (LIBE) will indeed vote on the compromise amendments negotiated with the EPP on e-privacy in electronic communications on Thursday 19 October following the EPP’s decision to withdraw support for the amendments (see EUROPE 11885), as the rapporteur has decided to re-introduce tracking walls and e-privacy by default.
The situation at the European Parliament was still chaotic a few hours ahead of the vote. The EPP surprised everyone when it withdrew its backing from the compromise amendments, going against the view of the EPP’s shadow rapporteur, Michal Boni (Poland). We understand that Germany’s Axel Voss and Sweden’s Anna Maria Corazza Bildt asked their EPP colleagues to reject the compromise due to unforeseen consequences for Articles 6, 8 (2) and 10. The EPP wants derogations to the consent rule for data processing for ‘legitimate interest’ or ‘future data processing.’
The draft regulation aims to boost confidentiality in the exchange of communications online while allowing service providers to use their clients’ personal data if the clients have given their prior consent (see EUROPE 11700). At this stage, the various committees due to issue their opinions, industry (ITRE), legal affairs (JURI) and internal market (IMCO) have all done so. The report from the civil liberties committee (LIBE) which is responsible for the issue, is due to be voted upon on 12 October, having been postponed for a week to ensure the compromise amendments got through. But noting much has changed in a week and we understand that the EPP’s move may jeopardise the outcome of the vote or at least the rapporteur’s negotiating mandate.
Two amendments re-introduced
The main consequence of the EPP’s decision is that the idea of default parameters providing the greatest possible protection when software is installed (Article 10) and the ban on tracking walls (Article 8(1a)) will be re-introduced into the compromise amendments. The first requires software suppliers to configure their software in such a way as to protect privacy and ban any monitoring of domain and storage of information on terminals by third parties. The second bans practice whereby a user refusing to be traced with cookies could be prevented from accessing websites or apps. Both measures add things that were not included in the European Commission’s initial proposal.
A detailed regime for consent
The compromise amendments negotiated with the EPP will be voted upon, including the idea of allowing data processing from terminals such as smartphones if risk can be sufficiently reduced, which is half-way between the EPP’s desire to facilitate future processing of metadata.
The other compromise amendments exclude machine2machine communications and auxiliary services from application of the regulation, thus opposing what the Commission and, more recently, the European Data Protection Controller (EDPS) recommended. They would allow service suppliers and third parties acting for them to legally process data in order to ensure the availability, integrity, confidentiality and security of networks and services. An exemption has been introduced for households to allow data processing without consent for all users for purely individual services. The amendments also allow service suppliers to preserve and process data for measuring audience levels. Compromise nine says it must be possible to both give and withdraw consent and objections added using automated and legally binding means (navigation parameters such as ‘do not monitor’). Finally, just like the Council, the European Parliament’s compromise amendments consider giving the option of blocking calls from specific numbers or codes (prefixes) that suggest they are marketing calls. The compromises also cover end-to-end encryption without hidden doors controlled by the government. (Original version in French by Sophie Petitjean)