Messaging services such as WhatsApp, Facebook Messenger and Gmail will face tough new rules on the tracking of users under a revision to the ePrivacy Directive proposed by the European Commission on Tuesday.



The new legislation seeks to reinforce the right to privacy and control of data for European citizens, with messaging, email and voice services – such as those provided by Facebook, Google and Microsoft – forced to guarantee the confidentiality of conversations and metadata around the time, place and other factors of those conversations.

Listening to, tapping, intercepting, scanning or the storing of communications will not be allowed without the consent of the user, unless it is critical for billing or other purposes. Companies will have to ask for the explicit consent of users before being able to use their data for advertising purposes, which most use to fund services provided for free to end-users.

Andrus Ansip, vice-president for the digital single market said: “Our proposals will deliver the trust in the Digital Single Market that people expect. I want to ensure confidentiality of electronic communications and privacy. Our draft ePrivacy Regulation strikes the right balance: it provides a high level of protection for consumers, while allowing businesses to innovate.”

The rules governing the placing and use of cookies, which currently require consent for all purposes and has led to a cookie warning appearing on a site when visiting for the first time, are being simplified. The EC hopes to remove the overload of cookie warnings.

Cookies required for the operation of an internet experience that do not impact on privacy, such as items in an online shopping cart, will no longer require consent, nor will cookies used to analyse visitor numbers. But “privacy intrusive” cookies will still require consent before being placed on a user’s machine.

The proposals also ban unsolicited and nonconsensual electronic communication, and will require marketing calls to display their phone number or use a special prefix only for marketing calls.

Companies falling foul of the new laws will face fines of up to 4% of their global turnover, in line with the separate General Data Protection Regulation (GDPR) set to be applied in 2018.

MEP and former vice-president of the European Commission, Viviane Reding, welcomed the proposal but warned that scrutiny of the exemptions regarding metadata and content was required. She said: “I salute the extension of the scope to over-the-top services such as WhatsApp, the recognition of the general principles of confidentiality and prior consent, and the many consumer safeguards regarding unsolicited direct marketing communications and spam.”

The EC’s proposal looks to close the perceived regulation gap between traditional telecoms companies and predominantly US-based internet communications companies. It extends some of the rules governing telecoms operators to so-called over-the-top services, while also allowing telecom companies to use customer metadata – such as the duration and location of calls – to provide additional services and make more money, something they are barred from doing under the current rules.

The telecoms industry said the proposals were still stricter for them than web companies. Lise Fuhr, director general of the European telecoms lobby ETNO said: “Unlike others, telcos risk being prevented from expanding consumer choice by using traffic and location data for big data analytics, Internet of Things and connected driving services.”

Online advertisers also warned that overly strict rules would undermine the ability of many websites to fund themselves and offer free services. Yves Schwarzbart, head of policy and regulatory affairs at the Internet Advertising Bureau, said: “It will particularly hit those companies that … find it most difficult to talk directly to end users and what I mean by that is tech companies that operate in the background and facilitate the buying and selling of advertising, rather than the ones that the user directly engages with.”

Online advertising generates £10bn ($12bn) of revenue for publishers and content creators in the UK alone, according to the IAB.

The proposal requires approval from the European Parliament and member states before becoming law,. It is set to join the much needed update to data protection voted through under the GDPR, which will apply to the UK from 25 May 2018, despite the Brexit process.