The German EU Council Presidency is throwing in the towel. Like its seven predecessors, it failed to rally the support of a majority of Member States for the draft Regulation on the confidentiality of online communications. In the absence of anything better, it will therefore submit a progress report to the meeting of Telecommunications Ministers to be held on 7 December (see EUROPE 12522/11).
However, Berlin has been working hard to achieve a general approach from the EU Council on this text, which aims to replace the current Directive on Privacy and Electronic Communications to cover call or instant messaging services such as WhatsApp (see EUROPE 11700/1).
In total, it submitted five compromise proposals to the working group. However, it has not been successful in obtaining adherence. “It is clear from the Member States’ reactions to the [latest] compromise proposal of the Presidency that further work is needed on the file”, notes the draft progress report, as seen by EUROPE.
This compromise proposal, dated 4 November, deleted the notion of legitimate interest as a legal basis for processing metadata without consent (see EUROPE 12596/8). It also deleted any reference to data retention and the fight against child pornography.
In its draft progress report, the German Presidency notes that the removal of the legitimate interest was “broadly supported” although some Member States would have preferred to retain it. “In the opinion of some Member States, the text was too restrictive towards innovation and the permission for processing of metadata”, the Presidency adds.
Similarly, “many” States would have liked to see the data retention provisions kept, as proposed by the former Finnish Presidency (see EUROPE 12375/11). “Other Member States argued for a broader exemption of security related issues from the scope of the proposal”.
Concluding that “a number of Member States expressed the view that the Finnish Presidency proposal could be considered as the starting point for future negotiations”.
Link to the progress report: https://bit.ly/33beS67 (Original version in French by Sophie Petitjean)