Monday 10th 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 21

Obtaining end-users’ consent to set cookies

(21) Exceptions to the obligation to obtain consent to make use of the processing and storage capabilities of terminal equipment or to access information stored in terminal equipment 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 legitimate purpose of enabling the use of 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 [sic] 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.

21(a) 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. 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. Consent should not be necessary either when the purpose of using the processing storage capabilities of terminal equipment is to fix security vulnerablities and other security bugs, provided that such updates do not in any way change the functionality of the hardware or software or the privacy settings chosen by the enduser 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. Consent should not be necessary either if the use of processing and storage capabilities of terminal equipment and the collection of information from end-users’ terminal equipment is necessary for the provision of the information society service, such as IoT (for instance connected devices, such as connected thermostats), requested by the end-user.