The Austrian draft compromise on electronic communications privacy received a relatively warm welcome by the telecommunications working party group on 17 July. According to the information we have received, a significant number of delegations was in support of removing the provisions on privacy settings (article 10).
It should be recalled that the draft regulation aims to enhance online privacy, including communications through over the top operators, whilst allowing service providers to use the personal data of customers who have given their prior consent (see EUROPE 11700). Since 26 October 2017, the European Parliament has been waiting to begin negotiations with the Council (see EUROPE 11892). Moreover, according to the work calendar, the Austrian Presidency of the Council is not planning to complete this dossier and will restrict itself to producing a progress report (see EUROPE 12060).
Articles 6 and 10 on right track
The meeting on 17 July focused on the most controversial issues in the proposal, namely, articles 6 (authorised data processing), 8 (protection of information stored in terminal equipment) and 10 (privacy settings). According to the information we have received, it appears that a large number of member states - enough to create a very slight minority blockage - is opposed to maintaining the provisions on authorised data processing and therefore support Austria's proposal to remove this article. Similarly, during the discussions, a majority of member states appear to have supported the Austrian proposal authorising subsequent metadata processing when this kind of processing is not possible on the basis of anonymous information, that the metadata is immediately removed or made anonymous after use, that the processing is restricted to the metadata referring to a pseudonym and that the final objective is not to undertake profiling (art. 6(2a)). The delegations, however, did request more details.
Article 8 is more sensitive
There appeared to be less progress, however, on article 8, which raises the question of 'cookie walls' that effectively prohibit users’ access to a website if they have not agreed to being tracked by cookies. The European Commission is not explicitly tackling this practice in its initial proposal but Parliament did decide to ban it. Given the recent opinion from the European data protection committee, the Austrian Presidency was suggesting that they clarify in a recital that introducing conditions on accessing a website on the basis of accepting cookies is not “disproportionate” if the end user is able to decide between an offer of cookies (free of charge) and a similar cookie-free offer (requiring payment). This would be in view of providing more room for manoeuvre than what was offered previously. It would appear that this question is extremely sensitive, given that several delegations consider that it encroaches on the General Data Protection Regulation.
The Austrian Presidency has promised to organise another meeting in the second-half of September. (Original version in French by Sophie Petitjean)