The European Data Protection Board (EDPB) last month has taken a significant step towards enhancing privacy protections with the adoption of Guidelines pertaining to the technical scope of Article 5(3) of the ePrivacy Directive.
The primary objective of these Guidelines, as stated by EDPB Chair Anu Talus, is to bring clarity to the interpretation of Article 5(3) of the ePrivacy Directive. The focus is on elucidating the coverage of technical operations, especially those associated with new and emerging tracking techniques, under the Directive. The intention is to provide greater legal certainty for both data controllers and individuals affected by these tracking technologies.
Chair Anu Talus acknowledged the potential harm to privacy caused by online user tracking, stating, "It is no secret that tracking the activities of users online can seriously harm people’s privacy." Talus highlighted the uncertainties surrounding the application of Article 5(3) and the emergence of new tracking techniques, which pose additional privacy risks alongside traditional cookies. The Guidelines propose solutions such as tracking links, pixels, local processing, and unique identifiers to ensure compliance with the consent obligations outlined in the article.
The Guidelines, through an analysis of key notions including 'information,' 'terminal equipment of a subscriber or user,' 'electronic communications network,' 'gaining access,' and 'stored information/storage,' seek to clarify the technical scope of Article 5(3) of the ePrivacy Directive. Additionally, practical use cases featuring common tracking techniques are included to offer concrete examples.
It is crucial to note that these Guidelines exclusively address the scope of the application of Article 5(3) of the ePrivacy Directive. They do not delve into the methodologies for consent collection or the exemptions specified in the article. The Guidelines are set to undergo a six-week public consultation, during which stakeholders and the general public can provide feedback, ensuring a diverse range of perspectives is considered in the finalization of these Guidelines.