According to a leaked draft, on November 4, 2021, the Council of the European Union (“Council”) and the European Parliament (“Parliament”) agreed a number of amendments to the following three chapters of the draft ePrivacy Regulation, which will replace the ePrivacy Directive 2002/58/EC and has been pending since January 2017):

  • Chapter III (End-Users’ Rights to Control Electronic Communications) – this chapter is expected to regulate: (i) the presentation of calling and connected line identification (g., whether the device’s screen identifies the number of the incoming call); (ii) the blocking of unwanted malicious or nuisance calls; (iii) the inclusion of information, including personal data, in publicly available directories; and (iv) unsolicited direct marketing communications (e.g., spam email and SMS texts).
  • Chapter V (Remedies, Liability and Penalties) – this chapter is expected to regulate: (i) remedies; (ii) right to compensation and liability; (iii) general conditions for imposing administrative fines; and (iv) penalties.
  • Chapter VI (Final Provisions) – this chapter is expected to regulate the entry into force of the draft Regulation and the subsequent monitoring of its implementation by the European Commission.

However, the Council and Parliament still disagree on a number of significant issues.  For example, the Council and Parliament have not yet agreed on a definition of “unwanted calls”.  They also disagree on the scope of the prohibition for sending direct marketing communications without the recipient’s consent:  the Council intends to apply this prohibition only to communications sent to “natural persons”, while Parliamentarians want the prohibition to apply to sending communications to legal persons (e.g., companies) as well.  The Parliament also seeks to extend the traditional definition of direct marketing (which includes automated calling machines, telefaxes, and e-mails, including SMS messages) to various other types of advertisements, such as “pop-up windows or email-like advertisements” (e.g., push notifications), something not currently endorsed by the Council.

The Council and Parliament plan to hold a second trilogue on November 18, 2021 with the aim of closing the above three chapters, to the extent possible, and moving on to the other chapters of the draft ePrivacy Regulation.  We will continue to monitor and report on the developments in future blog posts on Inside Privacy.

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Photo of Dan Cooper Dan Cooper

Daniel Cooper is co-chair of Covington’s Data Privacy and Cyber Security Practice, and advises clients on information technology regulatory and policy issues, particularly data protection, consumer protection, AI, and data security matters. He has over 20 years of experience in the field, representing…

Daniel Cooper is co-chair of Covington’s Data Privacy and Cyber Security Practice, and advises clients on information technology regulatory and policy issues, particularly data protection, consumer protection, AI, and data security matters. He has over 20 years of experience in the field, representing clients in regulatory proceedings before privacy authorities in Europe and counseling them on their global compliance and government affairs strategies. Dan regularly lectures on the topic, and was instrumental in drafting the privacy standards applied in professional sport.

According to Chambers UK, his “level of expertise is second to none, but it’s also equally paired with a keen understanding of our business and direction.” It was noted that “he is very good at calibrating and helping to gauge risk.”

Dan is qualified to practice law in the United States, the United Kingdom, Ireland and Belgium. He has also been appointed to the advisory and expert boards of privacy NGOs and agencies, such as Privacy International and the European security agency, ENISA.

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Photo of Kristof Van Quathem Kristof Van Quathem

Kristof Van Quathem advises clients on data protection, data security and cybercrime matters in various sectors, and in particular in the pharmaceutical and information technology sector. Kristof has been specializing in this area for over fifteen years and covers the entire spectrum of…

Kristof Van Quathem advises clients on data protection, data security and cybercrime matters in various sectors, and in particular in the pharmaceutical and information technology sector. Kristof has been specializing in this area for over fifteen years and covers the entire spectrum of advising clients on government affairs strategies concerning the lawmaking, to compliance advice on the adopted laws regulations and guidelines, and the representation of clients in non-contentious and contentious matters before data protection authorities.

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Photo of Anna Oberschelp de Meneses Anna Oberschelp de Meneses

Anna Sophia Oberschelp de Meneses is an associate in the Data Privacy and Cybersecurity Practice Group.  Anna is a qualified Portuguese lawyer, but is both a native Portuguese and German speaker.  Anna advises companies on European data protection law and helps clients coordinate…

Anna Sophia Oberschelp de Meneses is an associate in the Data Privacy and Cybersecurity Practice Group.  Anna is a qualified Portuguese lawyer, but is both a native Portuguese and German speaker.  Anna advises companies on European data protection law and helps clients coordinate international data protection law projects.  She has obtained a certificate for “corporate data protection officer” by the German Association for Data Protection and Data Security (“Gesellschaft für Datenschutz und Datensicherheit e.V.”). She is also Certified Information Privacy Professional Europe (CIPPE/EU) by the International Association of Privacy Professionals (IAPP).  Anna also advises companies in the field of EU consumer law and has been closely tracking the developments in this area.  Her extensive language skills allow her to monitor developments and help clients tackle EU Data Privacy, Cybersecurity and Consumer Law issues in various EU and ROW jurisdictions.

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