ePrivacy and GDPR: Navigating Dual Cookie Compliance

European cookie compliance isn't governed by GDPR alone. The ePrivacy Directive (commonly called the "Cookie Law") works alongside GDPR to create a comprehensive framework. Understanding how these regulations interact is crucial for proper compliance.

The Two-Regulation System

GDPR (General Data Protection Regulation)

Implemented in 2018, GDPR is a comprehensive regulation covering all aspects of personal data processing, including:

• Legal bases for processing data
• Data subject rights
• Security requirements
• Accountability principles
• Cross-border transfer rules

ePrivacy Directive

Originally adopted in 2002 and amended in 2009, the ePrivacy Directive specifically addresses:

• Electronic communications privacy
• Cookie usage and storage
• Confidentiality of communications
• Traffic and location data
• Unsolicited communications (spam)

How These Regulations Interact

While both regulations address digital privacy, they have a specific relationship:

GDPR: The General Framework

GDPR establishes broad principles and requirements for all personal data processing, including:

• Lawfulness, fairness, and transparency
• Purpose limitation
• Data minimization
• Accuracy
• Storage limitation
• Integrity and confidentiality
• Accountability

ePrivacy: The Specific Rules

The ePrivacy Directive provides specific rules for electronic communications, including cookies, and:

• Requires consent for storing or accessing information on user devices
• Establishes exceptions for technically necessary cookies
• Sets standards for cookie notices and consent mechanisms
• Addresses specific telecommunications requirements

The Legal Relationship

The relationship between these regulations follows a "lex specialis" principle:

• ePrivacy provides specific rules for electronic communications
• GDPR provides the general framework for all data processing
• When both apply, the more specific rules of ePrivacy take precedence
• For aspects not covered by ePrivacy, GDPR rules apply

Key Compliance Requirements Under Both Regulations

Consent Requirements

Under ePrivacy:

• Prior informed consent required before placing non-essential cookies
• Clear and comprehensive information about cookie usage
• Some narrow exceptions for strictly necessary cookies

Under GDPR:

• Consent must be freely given, specific, informed, and unambiguous
• Must be as easy to withdraw consent as to give it
• Cannot use pre-ticked boxes or implied consent
• Must be able to provide evidence of valid consent

Transparency Obligations

Under ePrivacy:

• Users must be provided with clear information about cookies
• Information must include cookie purposes and duration
• Must explain how to withdraw consent or opt out

Under GDPR:

• Detailed privacy notices covering all aspects of data processing
• Information about third-party data sharing
• Explanation of data subject rights
• Details about international transfers

Technical Implementation

Proper implementation under both regulations requires:

1. Cookie scanning and classification

   • Identify all cookies used on your site
   • Categorize by purpose, provider, and duration
   • Document technical specifications

2. Layered consent mechanism

   • First layer: Brief, clear information and consent options
   • Second layer: Detailed explanations and granular controls
   • Full privacy policy: Comprehensive information

3. Prior blocking of non-essential cookies

   • Technical implementation that prevents cookie setting before consent
   • Script-blocking capabilities for third-party content
   • Audit mechanisms to verify effectiveness

The Upcoming ePrivacy Regulation

The ePrivacy Directive is expected to be replaced by the ePrivacy Regulation, which will:

• Have direct effect across EU member states (like GDPR)
• Bring cookie rules even more in line with GDPR principles
• Update provisions for new technologies
• Potentially introduce stronger enforcement measures
• Address browser-level consent mechanisms

Key expected changes include:

• More browser-based consent options
• Clearer rules for tracking walls and cookie consent
• Updated provisions for machine-to-machine communications
• Stronger protection against unsolicited marketing

National Implementation Differences

Until the ePrivacy Regulation is adopted, the Directive allows for national variations:

Germany (TTDSG)

Germany implemented the ePrivacy Directive through the Telecommunications Telemedia Data Protection Act (TTDSG), which:

• Explicitly requires active consent for all non-essential cookies
• Sets specific requirements for consent banners
• Includes special provisions for telemedia services

France (CNIL Guidelines)

The French data protection authority (CNIL) has issued specific guidelines:

• Mandating cookie walls must not prevent access to essential services
• Requiring cookies to expire within 13 months
• Specifying design requirements for consent buttons

United Kingdom (Post-Brexit)

Despite Brexit, the UK has maintained similar cookie requirements:

• The Privacy and Electronic Communications Regulations (PECR)
• Requirements largely align with ePrivacy Directive
• Some possible future divergence from EU standards

Practical Compliance Steps

To ensure compliance with both regulations:

1. Conduct a comprehensive cookie audit

   • Document all cookies used on your site
   • Identify purpose, provider, and duration
   • Determine which require consent

2. Implement a compliant consent management platform

   • Block non-essential cookies by default
   • Provide granular consent options
   • Record and store consent for accountability

3. Update privacy documentation

   • Ensure cookie policy aligns with both regulations
   • Include specific information required by ePrivacy
   • Address GDPR requirements for data processing

4. Regularly review and update

   • Monitor regulatory changes and court decisions
   • Update compliance measures accordingly
   • Conduct periodic cookie audits to identify changes

Conclusion

Navigating the dual requirements of ePrivacy and GDPR presents challenges, but understanding their relationship provides clarity for implementation. While GDPR establishes the overarching framework for data protection, ePrivacy provides specific rules for cookie usage.

By implementing a comprehensive compliance strategy that addresses both regulations, you can ensure your cookie practices meet legal requirements while respecting user privacy rights.