ePrivacy Directive Review:

A difficult debate ahead for eCommerce

• Razvan Antemir

The Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector ( Directive on privacy and electronic communications, also referred to as the ePrivacy Directive), as updated in 2009, focuses on consumer privacy and the confidentiality of telecommunications. At that time, the Directive was regarded as a positive development as it referred to electronic marketing in a positive light, recognising its importance and benefits. However, it also brought a number of challenges, including the lack of precision in the text and the lack of clarity about who should enforce it, resulting very often from the lack of cooperation between Data Protection Authorities (DPAs) and telecommunications regulators. In 2009, several important updates were introduced in the body of the Directive, including the infamous Article 5.3 which required informed consent for the placing of cookies on the users’ terminals. Later, this came to be read as prior-consent, despite strong arguments in favour of an opt-out approach, in line with the level of intrusiveness of the respective practices.