The new Portuguese presidency of the EU Council has got off to a quick start on digital matters. Immediately after taking over the presidency, and despite its intention simply to present a progress report to the next Telecommunications Council meeting on 4 June, it has sent member states’ experts its proposals for unblocking negotiations on the regulation on the confidentiality of online communications.
The proposal, the aim of which is to replace the current Privacy and Electronic Communications Directive (e-Privacy) to cover call or instant messaging services such as WhatsApp, has now been blocked in the EU Council for four years (see EUROPE 11700/1).
The Portuguese document, which is dated Tuesday 5 January, is based on the text prepared by Finland at the end of 2019 rather than the text prepared by Germany, the last country to hold the rotating Presidency. “During the recent discussions in the Telecommunications working group, it has become clear that the majority of delegations could not support [the most recent German text]. A number of them expressed their wish for more substantial changes in the proposal”, says the text.
The most significant change is the reintroduction of the legal basis for the General Data Protection Regulation (GDPR) with regard to legitimate “further processing” in Articles 6 and 8. The purpose of this change is to authorise, without consent, the processing of metadata and the use of devices’ collection, storage and processing capacities for a purpose other than that for which they were requested. This legal basis, which has been repeatedly reintroduced and then removed, has been under discussion in the Council of the EU from the very beginning. It also divided the parties of the left and right in Parliament, but was ultimately left out (see EUROPE 11887/8).
The Portuguese proposal also makes changes to regulating the usage of the “cookie wall” (which does not allow a user to access a service without the user first agreeing to being tracked). Lisbon still maintains that this practice may be allowed as long as the user has an alternative, but states that this alternative need not necessarily be offered by the same provider. Similarly, with regard to the idea of general settings, using, for example, a white list of sites that can automatically track the user, the Presidency stresses in the recitals that expressing consent for a given service takes precedence over the settings in the software.
Other changes include a shorter implementation period (one year instead of two), the option for all service providers to undertake audience measurement, and the proposal to fine foreign operators if they do not have a representative in the EU.
The document can be found at: http://bit.ly/3ojjnE5 (Original version in French by Sophie Petitjean)