Back to content
Get Alerts

Help keep the internet open and secure

Subscribe to our action alerts and weekly newsletter

"*" indicates required fields

Hidden
Hidden
Name
This field is for validation purposes and should be left unchanged.

Your info is secure with us.

  • Follow Us
  • Like us
  • Follow us
  • Facebook
  • Twitter
  • Instagram
  • YouTube
  • LinkedIn
  • TikTok
Access Now
  • News & Updates
    • Get the latest

      news
      Expert insights

      Get the latest analysis, issue explainers, and community updates

      Press releases

      Our announcements, open letters, and statements

      Access Now in the news
      In the news

      Find us engaging media outlets around the world

      publications
      Publications

      Read our expert reports and recommendations

      Events
      Events

      Join us in our community events on and offline

  • Take action
    • Featured campaigns

      #FreeAlaa

      Tell the Egyptian authority to free Alaa Abd El-Fattah

      #KeepItOn

      Fighting internet shutdowns around the world

      WhyID
      #WhyID

      Putting people first in digital ID systems

      More campaigns

      Ban Biometric Surveillance

      Reclaim Your Face

      #KeepItOn for Tigray, Ethiopia

      More

      RightsCon: our annual event

      RightsCon Costa Rica 2023
  • Our work
    • Featured

      Surveillance
      Surveillance

      Fighting the spread and abuse of dangerous spying tools

      Content governance
      Content Governance

      Rights-based approaches to online content

      Data Protection
      Data Protection

      Protecting people’s personal information online

      Internet Shutdowns

      Fighting to #KeepItOn around the world

      More issues

      • Artificial Intelligence
      • Cybersecurity
      • Digital Identity Systems
      • Digital Security
      • Freedom of Expression
      • Privacy
      • Protest and Online Organizing
      • Transparency
  • Get help
    • Get immediate help

      help
      Digital Security Helpline

      We provide 24/7 technical support for activists, journalists, and human rights defenders around the world.

      Recent guides

      Digital security resources for human rights defenders in Ukraine

      Internet shutdowns and elections handbook

      Digital safety tips if you are disconnected

      All Guides

      Access Now Grants

      Grants
  • About us
    • Get to know us

      Our mission

      Defending and extending digital rights of people and communities at risk around the world

      Partnerships

      We act as connective tissue bringing together key stakeholders

      Our team

      Meet the experts leading our work around the world

      Access Now in the news
      Our board

      We value the diverse perspectives and guidance from our distinguished board

      Quick links

      Funding & financials

      Careers

Home / Posts / Chronicle of an EU e-Privacy Foretold: What the different drafts for reform tell us

|

Chronicle of an EU e-Privacy Foretold: What the different drafts for reform tell us

PUBLISHED: 24 January 2017LAST UPDATED: 13 January 2023

Privacy is a fundamental right and people clearly care about it, as the EU barometer survey results demonstrate. A full 92% of the respondents say that it is either important or very important that the confidentiality of their e-mails and instant messaging is guaranteed. The good news is that the European Commission is initiating reform of the e-Privacy Directive, the only piece of EU legislation that protects the rights to online privacy and confidentiality of communications. Reforming the law, which was passed in 2002, would protect the integrity of your communications whether you make a phone call, send an email, or exchange instant messages using WhatsApp. It would also protect you when you send data between two connected devices, like when your Fitbit sends data to your smartphone.

When the first leaked draft of the ePrivacy reform was published in December, the EU Commission seemed to have been heading in the right direction. This draft proposed rules enhancing mandatory protections to safeguard user rights. Unfortunately, it turns out that Brussels is where lobbying dreams often come true. After all the different departments within the EU Commission — from Home Affairs to Research — reviewed and modified the proposal, a final version was published on January 10th. It significantly weakens privacy protections for users, to the benefit of private industry.

Privacy as an option

First on the list of watered-down provisions is Article 10, where legislators have revised the requirements for privacy by design and by default. The Commission initially drafted rules that would have required companies to consider privacy and data protection from the beginning of the software or hardware development process, to guarantee that users would by default get a product or service configured with the strictest-possible privacy settings.

In a complete U-turn from this privacy-friendly approach, legislators are now proposing, per the rules published on January 10th, that requirements apply only to software development, and that companies are merely invited to offer different privacy settings. This is not only extremely disappointing but will also harm users and the digital economy, as it fails to address the current market failure which has resulted in the security and integrity of our products and communications being compromised.

Less protection for metadata

Between the December leak and the January 10th proposal, the rules for protecting metadata have been significantly weakened. First, legislators have cut down the list of what information constitutes metadata. It no longer refers to data that identifies your devices (like your phone, tablet, wifi router, smart devices, etc.), nor where they are located (see the difference between former recital 17 and final recital 14). Furthermore, the conditions for using both communications content and metadata are broad, and they do not adequately empower users to understand what personal information could be accessed or used, how it might be used, or for what reasons.

Fewer avenues for remedy

The December leak included an extensive article on access to remedy, which is a crucial pillar for guaranteeing users’ rights and preventing industry abuse. Now there are only two small provisions on remedy, and it’s no longer possible for consumer organisations and NGOs to represent a user or a group of users in court or before an authority tasked with enforcing the e-Privacy rules (see the changes between former article 23 and final article 21).

Next steps: Keep fighting for ePrivacy that protects users

Private industry has a disproportionate presence and power in crafting legislation, a constant challenge for civil society’s work in Europe, and in Brussels in particular. This rough start for the e-Privacy reform process is a reminder —  if anyone needed one — that there is intense industry lobbying to water down or even repeal the ePrivacy law altogether. It is crucial to ensure that the next stages of the negotiations are conducted in an open and transparent manner, to allow for adequate input from outside of industry.

Access Now is a long-time advocate for an update and upgrade of the e-Privacy Directive to better protect users’ rights, so we are disappointed by the content of the proposal released on January 10th. We nevertheless continue to support the Commission’s decision to reform the directive and turn it into a regulation, to ensure harmonisation in the law and guarantee that users across the EU enjoy the same level of protection for privacy. We will continue working with legislators to modify the proposal to ensure that it safeguards your fundamental rights and protects the integrity and security of your communications.

For more information, see our position paper on the e-Privacy reform here.

Estelle Massé
@EstelMP
  • Privacy
  • Europe
  • e-Privacy Directive
  • e-Privacy Regulation
  • EU Commission
  • European Commission
  • Fitbit
  • Metadata
  • privacy by default
  • privacy by design
  • Whatsapp
  • Contact
  • Careers
  • How We Use Your Data
  • Media Usage
  • Code of Conduct
  • Site Terms of Use

Crafted by Cornershop Creative

  • Facebook
  • Twitter
  • Instagram
  • YouTube
  • LinkedIn
  • TikTok

Help keep the internet open and secure

Subscribe to our action alerts and weekly newsletter

"*" indicates required fields

Hidden
Hidden
Name
This field is for validation purposes and should be left unchanged.

Your info is secure with us

  • Twitter
  • Facebook
  • Instagram
  • YouTube
  • LinkedIn
  • TikTok