The European ePrivacy Regulation (Council Proposal 10.02.2021)



ePrivacy Regulation, Article 8, Protection of end-users' terminal equipment information.


1. The use of processing and storage capabilities of terminal equipment and the collection of information from end-users’ terminal equipment, including about its software and hardware, other than by the end-user concerned shall be prohibited, except on the following grounds:


(a) it is necessary for the sole purpose of providing an electronic communication service; or


(b) the end-user has given consent; or


(c) it is strictly necessary for providing a service specifically requested by the enduser; or


(d) if it is necessary for the sole purpose of audience measuring, provided that such measurement is carried out by the provider of the service requested by the enduser, or by a third party, or by third parties jointly on behalf of or jointly with provider of the service requested provided that, where applicable, the conditions laid down in Articles 26 or 28 of Regulation (EU) 2016/679 are met; or


(da) it is necessary to maintain or restore the security of information society services or terminal equipment of the end-user, prevent fraud or prevent or detect technical faults for the duration necessary for that purpose; or


(e) it is necessary for a software update provided that:


(i) such update is necessary for security reasons and does not in any way change the privacy settings chosen by the end-user,


(ii) the end-user is informed in advance each time an update is being installed, and


(iii) the end-user is given the possibility to postpone or turn off the automatic installation of these updates; or


(f) it is necessary to locate terminal equipment when an end-user makes an emergency communication either to the single European emergency number ‘112’ or a national emergency number, in accordance with Article 13(3).


(g) where the processing for purpose other than that for which the information has been collected under this paragraph is not based on the end-user's consent or on a Union or Member State law which constitutes a necessary and proportionate measure in a democratic society to safeguard the objectives referred to in Article 11 the person using processing and storage capabilities or collecting information processed by or emitted by or stored in the end-users’ terminal equipment shall, in order to ascertain whether processing for another purpose is compatible with the purpose for which the electronic communications data are initially collected, take into account, inter alia:


(i) any link between the purposes for which the processing and storage capabilities have been used or the information have been collected and the purposes of the intended further processing;


(ii) the context in which the processing and storage capabilities have been used or the information have been collected, in particular regarding the relationship between end-users concerned and the provider;


(iii) the nature the processing and storage capabilities or of the collecting of information as well as the modalities of the intended further processing, in particular where such intended further processing could reveal categories of data, pursuant to Article 9 or 10 of Regulation (EU) 2016/679;


(iv) the possible consequences of the intended further processing for endusers;


(v) the existence of appropriate safeguards, such as encryption and pseudonymisation.


(h) Such further processing in accordance with paragraph 1 (g), if considered compatible, may only take place, provided that:


(i) the information is erased or made anonymous as soon as it is no longer needed to fulfil the purpose,


(ii) the processing is limited to information that is pseudonymised, and


(iii) the information is not used to determine the nature or characteristics of an end-user or to build a profile of an end-user.


(i) For the purposes of paragraph 1 (g) and (h), data shall not be shared with any third parties unless the conditions laid down in Article 28 of Regulation (EU) 2016/697 are met, or data is made anonymous.


2. The collection of information emitted by terminal equipment of the end-user to enable it to connect to another device and, or to network equipment shall be prohibited, except on the following grounds:


(a) it is done exclusively in order to, for the time necessary for, and for the purpose of establishing or maintaining a connection; or


(b) the end-user has given consent; or


(c) it is necessary for the purpose of statistical purposes that is limited in time and space to the extent necessary for this purpose and the data is made anonymous or erased as soon as it is no longer needed for this purpose,


(d) it is necessary for providing a service requested by the end-user.


2a. For the purpose of paragraph 2 points (b) and (c), a clear and prominent notice is shall be displayed informing of, at least, the modalities of the collection, its purpose, the person responsible for it and the other information required under Article 13 of Regulation (EU) 2016/679 where personal data are collected, as well as any measure the end-user of the terminal equipment can take to stop or minimise the collection.


2b. For the purpose of paragraph 2 points (b) and (c), the collection of such information shall be conditional on the application of appropriate technical and organisational measures to ensure a level of security appropriate to the risks, as set out in Article 32 of Regulation (EU) 2016/679, have been applied.


3. The information to be provided pursuant to paragraph 2a may be provided in combination with standardized icons in order to give a meaningful overview of the collection in an easily visible, intelligible and clearly legible manner.


4. The Commission shall be empowered to adopt delegated acts in accordance with Article 25 determining the information to be presented by the standardized icon and the procedures for providing standardized icons.


Note: This is not the final text of the ePrivacy Regulation. This is the text of the ePrivacy Regulation Proposal of the Council of the European Union from 10.2.2021.