Tuesday 11th December 2018

ePrivacy Proposal

This text is a draft proposal published by the European Council on 4th May, 2018

Chapter 1 (Articles 1 - 4)

General provisions

Chapter 2 (Articles 5 - 11)

Protection of electronic communications of end-users and of the integrity of their terminal equipment

Chapter 3 (Articles 12 - 17)

End-users' rights to control electronic communications

Chapter 4 (Articles 18 - 20)

Independent supervisory authorities and enforcement

Chapter 5 (Articles 21 - 24)

Remedies, liability and penalties

Chapter 6 (Articles 25 - 26)

Delegated Acts and Implementing Acts

Chapter 7 (Articles 27 - 29)

Final provisions

Recitals (1-42)

Select an Article

Select a Recital

Recital 17

Consent rules for processing metadata

(17) The processing of electronic communications data can be useful for businesses, consumers and society as a whole. Vis-à-vis Directive 2002/58/EC, this Regulation broadens the possibilities for providers of electronic communications services to process electronic communications metadata, based on end-users consent. However, end-users attach great importance to the confidentiality of their communications, including their online activities, and that they want to control the use of electronic communications data for purposes other than conveying the communication. Therefore, this Regulation should require providers of electronic communications services to obtain end-users’ consent to process electronic communications metadata, which should include data on the location of the device generated for the purposes of granting and maintaining access and connection to the service. Location data that is generated other than in the context of providing electronic communications services should not be considered as metadata. Examples of commercial usages of electronic communications metadata by providers of electronic communications services may include the provision of heatmaps; a graphical representation of data using colors to indicate the presence of individuals. To display the traffic movements in certain directions during a certain period of time, an identifier is necessary to link the positions of individuals at certain time intervals. This identifier would be missing if anonymous data were to be used and such movement could not be displayed. Such usage of electronic communications metadata could, for example, benefit public authorities and public transport operators to define where to develop new infrastructure, based on the usage of and pressure on the existing structure. Where a type of processing of electronic communications metadata, in particular using new technologies, and taking into account the nature, scope, context and purposes of the processing, is likely to result in a high risk to the rights and freedoms of natural persons, a data protection impact assessment and, as the case may be, a consultation of the supervisory authority should take place prior to the processing, in accordance with Articles 35 and 36 of Regulation (EU) 2016/679.

(17aa) Metadata that is location data can provide valuable information, such as insights in human movement patterns and traffic patterns. Such information may, for example, be used for urban planning purposes. Processing for purposes of statistical counting may take place without the consent of the end-users concerned, provided that certain conditions are met and safeguards are in place, including the consultation of the supervisory authority and the requirement to anonymise the result before sharing the analysis with third parties. As end-users attach great value to the confidentiality of their communications, including their physical movements, such data cannot be used to determine the nature or characteristics on an end-user or to build a profile of an enduser, in order to, for example, avoid that the data is used for segmentation purposes, to monitor the behaviour of a specific end-user or to draw conclusions concerning the private life of an end-user. For the same reason, the end-user must be provided with information about processing activities taking place for statistical counting and given the right to object to such processing.

(17a) The processing of electronic communications metadata should also be regarded to be permitted where it is necessary in order to protect an interest which is essential for the life of the end-users who are natural persons or that of another natural person. Processing of electronic communications metadata of an end-user for the protection of the vital interest of an end-user who is a natural person should in principle take place only where the protection of such interests cannot be ensured without that processing.

(17b) Processing of electronic communication metadata for scientific research or statistical purposes should be considered to be permitted processing. This type of processing should be subject to further safeguards to ensure privacy of the end-users by employing appropriate security measures such as encryption and pseudonymisation. In addtion, end-users who are natural persons should be given the right to object.