The draft regulation on the confidentiality of electronic communications continues to divide Member States (see EUROPE 12129, 12135).
These disagreements, already presented in vague terms in a progress report prepared by the Austrian Presidency of the Council, became even clearer during a round table discussion at the Telecommunications Council on 4 December.
Member States are generally cautious about this text, which reinforces the confidentiality of online exchanges, including via circumventing operators, while allowing service providers to use the personal data of customers who have given their prior consent (see EUROPE 11700).
In an exchange of views, Belgium, Poland, Slovenia, Finland, the Czech Republic, Malta, France, the United Kingdom and Denmark, for example, called for closer alignment of the proposal with the General Data Protection Regulation 'GDPR' (2016/679).
Malta and Ireland criticised the impact assessment of the proposal, stating that it was no longer up to date. While Malta requested a new study examining the impact on SMEs and new technologies, Ireland suggested updating the current analysis with regard to the GDPR.
The Vice-President of the Commission, Andrus Ansip, has spared no effort to convince the Member States. In a heated speech, he said that the absence of text posed risks in terms of competition, with traditional and circumventing operators running the risk of being subject to different regimes.
"The absence of an agreement would be a real mess!", he concluded.
Statement on controversial articles:
Scope of application (Article 2). The inclusion of machine-to-machine (M2M) communications does not please Finland at all.
Authorised processing (Article 6). Finland welcomed the possibility, introduced by the Austrian Presidency, of compatible further processing of communication metadata on the model of the GDPR, while Sweden opposed it. Germany, the United Kingdom and Ireland are concerned that the text may prevent Member States from taking action to detect child pornography.
Protection of equipment (Article 8). The progress report states progress made, while noting that some Member States would like to continue discussions. Cyprus has called for more legal certainty on cookie walls (recital 20).
Privacy settings (Article 10). Finland, Portugal and Latvia welcomed Austria's proposal to delete this article, while France merely highlighted the risk of fatigue of consent or the increased role of mariners.
On the other hand, Hungary and the Netherlands called for retaining this article, and Slovakia proposed keeping it in a simplified format.
Data retention (Article 11). Portugal expressed satisfaction with the way Article 11 was drafted, while Italy called for the data to be kept to be established.
Unsolicited communications (article 16). The new text raises concerns in the United Kingdom about negative impacts on broadcasters.
Supervisory authorities (Article 18). Finland, Sweden, Slovenia, Portugal, Latvia and Sweden expressed their satisfaction with the changes proposed by the rotating Presidency to make this article more flexible.
See the Austrian Presidency's progress report: https://bit.ly/2Sw04az. (Original version in French by Sophie Petitjean)