The Council of Europe, currently under the Slovenian presidency, in charge of the ePrivacy regulation, has recently reached some agreements with the European Parliament. The draft regulation, resulting from these advances, was released on November 4. Let's recall that this regulatory process was initiated more than four years ago and remained at a standstill for many months.

Here are the main points of the latest version of the draft regulation.

Agreements:

  • On the rights of end-users to control electronic communications: calling line identification, blocking of malicious or unwanted calls, inclusion of information, including personal data, in publicly accessible directories, and unsolicited direct marketing (junk mail and SMS).
  • On remedies, liabilities and sanctions: remedies, right to compensation/liability, general conditions for the imposition of administrative fines and penalties.
  • On the entry into force of the draft regulation and the subsequent monitoring of its implementation by the European Commission.

Disagreements: 

  • On the definition of unwanted calls.
  • On the scope of the prohibition on sending direct marketing communications without the recipient's consent: in draft Article 16(1), the Council wishes to apply this prohibition only to communications sent to natural persons, whereas the parliamentarians wish the prohibition to apply to the sending of communications to legal persons as well. This is a very important point, which will have to be followed up in the next phases of the regulatory process.
  • The Parliament also wants to extend the traditional definition of direct marketing (which already includes automatic calling machines, faxes, e-mails and SMS messages) to various other types of advertisements, such as pop-up windows or push notifications. The Council opposes this definitional expansion.

It should also be noted that the Council has requested an opinion from the delegations of the Member States, following the Parliament's proposal to create a red list at EU level, allowing natural and legal persons to oppose any telephone canvassing beforehand - article 16(4).

A second trialogue between the Council and the Parliament is scheduled for November 18, 2021, in order to formalize the agreements on the three blocks mentioned above, and to make progress on the other points of the draft ePrivacy Regulation.