New proposal for a Regulation on ePrivacy: pros and cons for e-commerce


Ecommerce Europe believes that a review of the ePrivacy Directive was needed in order to make this legislation fit for the future of online retail. However, in Ecommerce Europe’s opinion, the European Commission’s Proposal for a Regulation on Privacy and Electronic Communications represents a missed opportunity to bring more clarity in the rules on consent for cookies and to further simplify rules on unsolicited marketing communications.

“Given that differing EU legal frameworks is one of the top-3 barriers to cross-border e-commerce, we have always supported a full-harmonization approach in the context of ePrivacy and favored a Regulation as legislative instrument to review the legislation. Therefore, Ecommerce Europe welcomes the fact that the new European ePrivacy framework will be governed by a Regulation”, declared Ms. Marlene ten Ham, Secretary General of Ecommerce Europe. During the legislative process, Ecommerce Europe asks policymakers to recognize the important role that electronic communications and data-driven marketing play in the business models of online merchants. Legislators should adopt a balanced approach, not imposing unreasonable burdens on the industry which will not bring, in the end, any real benefits for users from a privacy and data protection point of view.

In this context, Ecommerce Europe believes that it is a missed opportunity that the proposal does not go far enough in simplifying cookie rules and reducing cookie-related burdens on the e-commerce industry. On the one side, Ecommerce Europe is pleased to see that cookies with a low or no privacy intrusive character will be exempted from consent requirement. However, it is unclear how far this rule will go, and therefore more clarification is needed on what is meant by low or no privacy intrusive character. Ecommerce Europe favors a broader interpretation of the rule on consent exemption for cookies with a low or no privacy intrusive character, which are commonly used and clearly communicated to the consumer in the context of online sales.

Ecommerce Europe also welcomes the fact that the proposed Regulation will allow consent to be given by browser settings when technically possible, because this will reduce the consumer’s consent fatigue and make it easier for online merchants to seek the consumer’s consent. Ecommerce Europe also supports the future-proof definitions of electronic communication and electronic mail in the Regulation, which is something that we have always advocated for. Ecommerce Europe is pleased that the proposal will still allow online merchants to send unsolicited marketing communications to clients who have provided their electronic contact details in the context of the sale of a product or a service.

However, Ecommerce Europe favors a broad interpterion of the “context of the sale of a product or a service”, which also covers a prior online relationship between the consumer and the merchant related to the orientation of the purchase. Moreover, online merchants should not be restricted to similar products in terms of unsolicited electronic commercial messages, but should rather be allowed to send unsolicited electronic commercial messages regarding all their goods, services or digital content.

Ecommerce Europe will assess the ePrivacy Proposal in more detail, draft a position paper and work together with EU legislators throughout the legislative process to solve the above-mentioned issues, in order to avoid potential negative impacts on the e-commerce sector.