The Council needs to work further in order to achieve a general position on the draft regulation on confidentiality of electronic communications. During a policy debate in Luxembourg on 8 June, telecoms ministers expressed divergent views on the more controversial articles. They also do not agree on the timeline to be respected.
The draft regulation aims to boost the confidentially of online exchanges while allowing service providers to use their clients’ personal information as long as the clients have given prior consent (see EUROPE 11700). The European Parliament has been waiting since 26 October 2017 to enter negotiations with the Council (see EUROPE 11892).
The ministerial discussion provided the first opportunity for the ministers to express official views on the text. The discussion was based on a progress report, three questions and the latest compromise text prepared by the Bulgarian Presidency of the Council (see EUROPE 12027).
Confidentiality parameters under question
This initial exchange of views showed that the ministers were nowhere near close to agreement on protection of terminal equipment (Article 8) and the confidentiality parameters (Article 10).
In its progress report, the Bulgarian Presidency said some delegations still doubted the added value of Article 10. Thus, during the debate, France, backed by Hungary, called for site-by-site consent rather than consent at the time of installation or first use or updates that alter the confidentiality parameters, as foreseen in the Presidency’s last compromise. We oppose the obligation to collect consent ab initio relating to the navigator due to its anti-competitive effect, said Fabrice Dubreuil on behalf of France. Finland expressed concern about the fact that the article could complicate the work of service providers in providing user-friendly services. Belgium queried the feasibility and impact of such a measure on competition.
On Article 8 on the protection of devices (tablets, telephones, computers), Sweden called for a risk-based approach and Belgium questioned the impact this would have on cloud security suppliers. Cyprus suggested instructing the Data Protection Council to assess the connection between this article and the general data projection regulation. Germany said very clearly that it could not accept the compromise in its current state, notably due to its impact on publicity (Recital 20 'cookies walls').
Other difficulties
The discussions seemed to make some slight progress on the question of authorised processing of metadata (Articles 5 and 6). Estonia, Sweden and Malta clearly backed the direction taken by the Presidency, Denmark called for a more pragmatic approach with more exceptions, Cyprus said the last compromise was not sufficiently future-oriented and Belgium said it was not clear. Germany complained about the direction that was taken.
The debate allowed light to be shone on differently working methods: the Commission, backed by the Netherlands, called for rapid progress to be made on the text, but Poland and the United Kingdom called for action not to be taken in haste. Commissioner Mariya Gabriel even asked the member states to agree on a common approach ‘before the summer.’ A press release from the S&D group, calls for the member states to not block the proposal any more.
Consensus on need to protect innovation
By way of a common point, a large majority of delegations stressed the importance of not damaging the data economy. Germany called for automatic driving to not be hindered, while Finland called for all machine to machine (M2M) communications to be excluded in general. Italy and Greece called for clarification about the surveillance authorities (Article 18) and Lithuania about data retention (Article 11). (Original version in French by Sophie Petitjean)