ePrivacy update

Just as the EU have updated the data protection regime with the General Data Protection Regulation (GDPR) coming into force across Europe on 25th May 2018, it’s also set to update the privacy rules as well. The last ePrivacy Directive was implemented in the UK as the Privacy and Electronic Communications Regulations (PECR) and are probably better known for the rules around the use of cookies on websites. But ePrivacy also complements data protection in the area of direct marketing.

Specifically, in the UK, PECR sets out the rules for when digital marketing is lawful, specifying the differences of what is allowed depending on whether you’re dealing with communications to customers, businesses or those who you don’t have a business relationship with. So the current rules (GDPR & PECR) specify the circumstances by which you need consent and when you don’t – that’s right: if you’re being advised you need consent for all communications, you’re probably being advised wrongly.

A draft ePrivacy Regulation was published in January 2017 with a view to it becoming EU law at the same time as the GDPR (25th May 2018). Since then, the European Parliament has published its report and now the European Council have published an updated version of it’s draft Regulation.

We still don’t know when this new ePrivacy Regulation will become law nor do we know how it will be implemented in the UK (particularly with Brexit looming). There is a general scepticism that it will be published by the GDPR deadline, with some speculating that it will probably be summer 2018 before it gets debated properly and then probably not implemented until 2019. In the meantime PECR remains relevant in the UK and PECR will continue to be relevant in the UK when GDPR becomes law in May even if the new ePrivacy Regulation is not ready by then.

You can read details of the new Regulation here but in a general it:

  • updates the rules on cookie consent
  • has potential to change the rules on direct marketing (which could include changes to the way B2B marketing is lawful)
  • extended the scope of “electronic communications” to much wider than email, phone, SMS or fax

Get in touch if you need any advice on how PECR impacts your GDPR preparations.