Germany, which has just taken over the reins of the EU Council, is planning the first round of discussions on the draft regulation on the confidentiality of electronic communications on 13 July. It also expects written comments from Member States by 24 July.
Like the seven Member States before it, the new rotating Presidency hopes to reach a general approach on this text which aims to replace the current Directive on the confidentiality of electronic communications (e-Privacy) to cover call or instant messaging services such as WhatsApp (see EUROPE 11700/1).
In a discussion paper dated 6 July, the German Presidency adopts a restrained position: it does not propose to reintroduce Article 10 (confidentiality parameter) and suggests waiting before reopening the issue of the fight against child pornography on which it was very active. In other words, the new Presidency suggests waiting for the new EU strategy promised by Commissioner Ylva Johansson before acting.
Options on Articles 6 and 8
However, the document does set out various options on items relating to authorised processing (Article 6) and protection of devices (Article 8).
With regard to the processing of metadata, for example, it wondered whether to continue to talk about vital interests (option 1) or if it is also necessary, in a recital, to give examples (option 2). It also addresses the notion of legitimate interest, reintroduced by the former Croatian Presidency, to see whether more guarantees for statistical counting are needed (see EUROPE 12437/22).
Regarding the protection of equipment, the Presidency asks delegations to confirm their support for the latest Croatian proposal, namely authorised access to the storage capacity of the equipment subject to certain safeguards. If necessary, it proposes, under option 2, to start from the draft general approach submitted by the Finnish, while taking care not to damage newspaper publishers.
As a reminder, the Finnish option did not exclude the practice of ‘cookie walls’, which prohibits a user from accessing a site if they do not consent to the processing of their data, as long as there is an alternative or there is no “imbalance between the user and the service provider” (see EUROPE 12367/17).
See the working document: https://bit.ly/3f7vq2J (Original version in French by Sophie Petitjean)