European Commission’s Report on Public Consultation for the review of the ePrivacy Directive

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In August, the European Commission released its report summarizing the findings of the public consultation on the ePrivacy Directive. This consultation was aimed at assessing the current rules and seeking views on possible adaptations to the Directive in light of market and technological developments – including of course e-commerce – with the objective of contributing to the Digital Single Market Strategy of the European Commission. Given the importance of this piece of legislation for the online retail sector, Ecommerce Europe also contributed to the public consultation.

A necessary update of the ePrivacy Directive

Citizens and civil society organizations in particular answered strongly in favour of an update of the ePrivacy Directive and of adding specific rules to protect privacy for the electronic communications sectors, with 83% stating that such rules were necessary, and 73% stating that specific rules were also needed for traffic and location data. When assessing the current ePrivacy Directive, a large majority of them believes that only to a limited extent of it has achieved its objectives, for several reasons, including the restrictions of the scope of the directive, the vagueness of its provisions, which has allowed for differences in implementation across the Member States, and a failure to enforce compliance with its provisions. In contrast, industry expressed a more favourable view of the existing legislation and is much more divided on the extension of the scope of legislation to cover new communication services with 43% in favour, and 42% against.

Ecommerce Europe is committed to working for a coherent, unified set of rules on ePrivacy at the European level and welcomed the consultation as part of the review of the ePrivacy Directive, as it is essential that European policymakers update regulation for what is a very rapidly developing sector. In Ecommerce Europe’s view, legislation must be mindful of protecting the consumer while also reflecting the importance of electronic communications and data-driven marketing to the business models of online retailers. In terms of the scope of legislation, Ecommerce Europe views an extension as highly necessary to reflect the innovation that has taken place in the sector, and regulation must therefore include services such as instant messaging.

Division over the use of cookies

With regards to the use of cookies, 77% of citizens and civil society organisations, and 70% of public authorities, believe that service providers should not have the right to prevent access to those who refuse the use of cookies. Some three-quarters of respondents from industry expressed the opposite view. On this very issue, Ecommerce Europe has consistently called for a reform of existing cookie rules towards a more practical and transparent instrument which is easy and affordable to comply with, especially for smaller web shops.

Opt-in or opt-out for direct marketing?

While there was near consensus that Member States should lose the right to decide whether to have an opt-out or opt-in system for direct marketing calls, there were divisions over which system should apply. Industry tended to favour an opt-out system, with 73% expressing support for this view, while close to 90% of respondents from other stakeholder groups favoured an opt-in system.

Ecommerce Europe welcomes the findings of the report in terms of the right of member states to make the decision to adopt an opt-in or opt-out system, given its strong support for coherent and uniform regulation across the EU. In Ecommerce Europe’s view, divergence in this area between member states is a barrier to cross-border trade that must be removed.

Ecommerce Europe also strongly believes an opt-out system is highly preferable, given that electronic mail, fax and automated calling machines are a less personal and direct means of interaction with consumers than telemarketing. It is the position of Ecommerce Europe that all forms of electronic communication should therefore be subject to the same opt-out consent, as is applicable to telemarketing. A member of Ecommerce Europe specifically supports the idea that an opt-out option for telemarketing is a good compromise, especially when properly framed with legally imposed telephone opposition lists.

Next steps

In the coming months, work on this area of legislation will continue. The Commission will continue to analyse the results of the consultation, and will publish a full report in Autumn 2016. The findings of this report will then feed into the Commission’s REFIT exercise on the ePrivacy Directive. Throughout this process, Ecommerce Europe will continue to advocate on behalf of its members for coherent and effective regulation that takes into account the interests of online retailers

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