The European ePrivacy Regulation (Council Proposal 10.02.2021)

ePrivacy Regulation, Preamble 21 to 30.

(21) Use of the processing and storage capabilities of terminal equipment or access to information stored in terminal equipment without the consent of the end-user should be limited to situations that involve no, or only very limited, intrusion of privacy.

For instance, consent should not be requested for authorizing the technical storage or access which is necessary and proportionate for the purpose of providing a specific service requested by the end-user. This may include the storing of cookies for the duration of a single established session on a website to keep track of the enduser’s input when filling in online forms over several pages, authentication session cookies used to verify the identity of end-users engaged in online transactions or cookies used to remember items selected by the end-user and placed in shopping basket.

In the area of IoT services which rely on connected devices (such as connected thermostats, connected medical devices, smart meters or automated and connected vehicles), the use of the processing and storage capacities of those devices and access to information stored therein should not require consent to the extent that such use or access is necessary for the provision of the service requested by the end-user.

For example, storing of information in or accessing information from a smart meter might be considered as necessary for the provision of a requested energy supply service to the extent the information stored and accessed is necessary for the stability and security of the energy network or for the billing of the end-users' energy consumption. The same applies for instance to storing, processing or accessing of information from automated and connected vehicles for security related software updates.

(21aa) In some cases the use of processing and storage capabilities of terminal equipment and the collection of information from end-users' terminal equipment may also be necessary for providing a service, requested by the enduser, such as services provided in accordance with the freedom of expression and information including for journalistic purposes, e.g. online newspaper or other press publications as defined in Article 2 (4) of Directive (EU) 2019/790, that is wholly or mainly financed by advertising provided that, in addition, the end-user has been provided with clear, precise and user-friendly information about the purposes of cookies or similar techniques and has accepted such use.

(21a) Cookies can also be a legitimate and useful tool, for example, in assessing the effectiveness of a delivered information society service, for example of website design and advertising or by helping to measure the numbers of end-users visiting a website, certain pages of a website or the number of end-users of an application. This is not the case, however, regarding cookies and similar identifiers used to determine the nature of who is using the site, which always require the consent of the end-user. Information society providers that engage in configuration checking to provide the service in compliance with the end-user's settings and the mere logging of the fact that the end-user’s device is unable to receive content requested by the end-user should not constitute access to such a device or use of the device processing capabilities.

(21b) Consent should not be necessary either when the purpose of using the processing storage capabilities of terminal equipment is to fix security vulnerabilities and other security bugs or for software-updates for security reasons, provided that the end-user concerned has been informed prior to such updates, and provided that such updates do not in any way change the functionality of the hardware or software or the privacy settings chosen by the end-user and the end-user has the possibility to postpone or turn off the automatic installation of such updates. Software updates that do not exclusively have a security purpose, for example those intended to add new features to an application or improve its performance, should not fall under this exception.

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(25) Accessing electronic communications networks requires the regular emission of certain data packets in order to discover or maintain a connection with the network or other devices on the network. Furthermore, devices must have a unique address assigned in order to be identifiable on that network. Wireless and cellular telephone standards similarly involve the emission of active signals containing unique identifiers such as a MAC address, the IMEI (International Mobile Station Equipment Identity), the IMSI, the WiFi signal etc.

A single wireless base station (i.e. a transmitter and receiver), such as a wireless access point, has a specific range within which such information may be captured. Service providers have emerged who offer physical movements' tracking services based on the scanning of equipment related information with diverse functionalities, including people counting, such as providing data on the number of people waiting in line, ascertaining the number of people in a specific area, referred to as statistical counting for which the consent of end-users is not needed, provided that such counting is limited in time and space to the extent necessary for this purpose.

Providers should also apply appropriate technical and organisations measures to ensure the level if security appropriate to the risks, including pseudonymisation of the data and making it anonymous or erase it as soon it is not longer needed for this purpose. Providers engaged in such practices should display prominent notices located on the edge of the area of coverage informing end-users prior to entering the defined area that the technology is in operation within a given perimeter, the purpose of the tracking, the person responsible for it and the existence of any measure the end-user of the terminal equipment can take to minimize or stop the collection.

Additional information should be provided where personal data are collected pursuant to Article 13 of Regulation (EU) 2016/679. This information may be used for more intrusive purposes, which should not be considered statistical counting, such as to send commercial messages to end-users, for example when they enter stores, with personalized offers locations, subject to the conditions laid down in this Regulation, as well as the tracking of individuals over time, including repeated visits to specified locations.

(25a) Processing the information emitted by the terminal equipment to enable it to connect to another device would be permitted if the end-user has given consent or if it is necessary for the provision of a service requested by the end-user. This kind of processing might be necessary for example for the provision of some IoT related services.

(26) When the processing of electronic communications data by providers of electronic communications services falls within its scope, this Regulation should provide for the possibility for the Union or Member States under specific conditions to restrict by law certain obligations and rights, including by way of derogations, when such a restriction constitutes a necessary and proportionate measure in a democratic society to safeguard specific public interests, including public security and the prevention, investigation, detection or prosecution of criminal offences, or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security and other important objectives of general public interest of the Union or of a Member State, in particular an important economic or financial interest of the Union or of a Member State, or a monitoring, inspection or regulatory function connected to the exercise of official authority for such interests.

Therefore, this Regulation should not affect the ability of Member States to carry out lawful interception of electronic communications, including by requiring providers to enable and assist competent authorities in carrying out lawful interceptions, or take other measures, such as legislative measures providing for the retention of data for a limited period of time, if necessary and proportionate to safeguard the public interests mentioned above, in accordance with the Charter of Fundamental Rights of the European Union and the European Convention for the Protection of Human Rights and Fundamental Freedoms, as interpreted by the Court of Justice of the European Union and of the European Court of Human Rights. Providers of electronic communications services should provide for appropriate procedures to facilitate legitimate requests of competent authorities, where relevant also taking into account the role of the representative designated pursuant to Article 3(3).

(27) As regards calling line identification, it is necessary to protect the right of the calling party to withhold the presentation of the identification of the line from which the call is being made and the right of the called party to reject calls from unidentified lines. Certain end-users, in particular help lines, and similar organisations, have an interest in guaranteeing the anonymity of their callers. As regards connected line identification, it is necessary to protect the right and the legitimate interest of the called party to withhold the presentation of the identification of the line to which the calling party is actually connected.

(28) There is justification for overriding the elimination of calling line identification presentation in specific cases. End-users' rights to privacy with regard to calling line identification should be restricted where this is necessary to trace malicious or nuisance calls and with regard to calling line identification and location data where this is necessary to allow emergency services, such as eCall, to carry out their tasks as effectively as possible.

Location information established by the terminal equipment, using its built-in Global Navigation Satellite Systems (GNSS) capabilities or other types of terminal equipment based location data, such as location data derived from the WiFi functionality, may supplement the location data supplied by providers of number-based interpersonal communications services when a call is made to emergency services.

The temporary denial or absence of consent of an end-user to access location data provided by the terminal equipment GNSS, for example, because location settings are turned off, shall not prevent the transfer of such information to emergency services for the purposes of facilitating access to such services. Directive 2014/53/EU empowers the Commission to adopt delegated acts requiring that specific categories or classes of radio equipment support certain features ensuring access to emergency services.

(29) Technology exists that enables providers of electronic communications services to limit the reception of unwanted, malicious or nuisance calls by end-users in different ways, including blocking silent calls and other unwanted, malicious and nuisance calls, such as calls originating from invalid numbers, i.e. numbers that do not exist in the numbering plan, valid numbers that are not allocated to a provider of a number-based interpersonal communications service, and valid numbers that are allocated but not assigned to an end-user.

Providers of numberbased interpersonal communications services should deploy this technology and protect end-users against such calls free of charge. Providers should ensure that endusers are aware of the existence of such functionalities, for instance, by publicising the fact on their webpage.

(30) Publicly available directories means any directory or service containing information on end-users of number-based interpersonal communication services such as name, phone numbers (including mobile phone numbers), email address, home address and includes inquiry services, the main function of which is to enable to identify such end-users. End-users that are natural persons should be asked for consent before their personal data are included in a directory, unless Member States provide that such end-users have the right to object to inclusion of their personal data.

The legitimate interest of legal persons requires that end-users that are legal persons have the right to object to the data related to them being included in a directory. End-users who are natural persons acting in a professional capacity should be treated as legal persons for the purpose of the provisions on publicly available directories.

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.