ePrivacy Regulation- Further Delay as Germany Looks for Changes

July 2018

Originally due to come in at the same time as the General Data Protection Regulation (GDPR) the European ePrivacy Regulation looks set for further delay following the German Government setting out an updated position.

Set to replace the ePrivacy Directive (implemented in the UK by the Privacy and Electronic Communications Regulations (PECR)), the ePrivacy Regulation looks to update the laws relating to the specific privacy issues posed by electronic communications and goes beyond the provisions of GDPR.

Outside of communications providers, the impact of the Regulation (and the existing Directive) relates to electronic marketing (spam) and the use of cookies on the web. Cookie consents are to be streamlined (less pop-ups), and the prohibition on marketing to individuals without consent or a ‘soft opt in’ is retained. The regulation also brings newer players (such as WhatsApp) in to scope of some of the more technical provisions, and as an EU regulation, the rules will introduce consistency across member states.

The text of the Regulation has been undergoing legislative ping-pong between the Commission and European Parliament and, though delayed, was thought to be on the way to coming in to effect later this year.

In a response to a question in the German Parliament, it now looks like Germany will seek further changes to the draft agreement including a two year transition period. Getting the text of the Regulation fully agreed may now be even further away and the proposed two year transition period may mean that the full effect of the Regulation is not felt for some time to come.

How the Regulation will apply to the UK is also up in the air. As it was originally due to come in at the same time as GDPR, the Regulation would have been covered by the European (withdrawal) Act 2018 and would have transposed in to UK law. Given that the Regulation is now likely to come in either during some form of transition period or when the UK is no longer a member state, the extent to which the Regulation will apply is unclear. Those offering services within the EU will be caught by the Regulation whatever happens, whether the UK government brings the Regulation in to UK law, produces a UK specific approach, or continues with PECR is yet to be seen.   

This update was prepared by HGF IP Solicitor James Talbot.  If you would like further advice on this or any other matter please contact James or your usual HGF representative, alternatively visit our Contact Page to get in touch with your nearest HGF office.