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ePrivacy Directive

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Cookies and ePrivacy Directive

Passed in the 2002 and amended in 2009, the ePrivacy Directive (EPD) has become known as the “cookie law” since its most notable effect was the proliferation of cookie consent pop-ups after it was passed. It supplements (and in some cases, overrides) the GDPR, addressing crucial aspects about the confidentiality of electronic communications and the tracking of Internet users more broadly.

Cookie compliance

To comply with the regulations governing cookies under the GDPR and the ePrivacy Directive you must:

  • Receive users’ consent before you use any cookies except strictly necessary cookies.

  • Provide accurate and specific information about the data each cookie tracks and its purpose in plain language before consent is received.

  • Document and store consent received from users.

  • Allow users to access your service even if they refuse to allow the use of certain cookies

  • Make it as easy for users to withdraw their consent as it was for them to give their consent in the first place.

ePrivacy Regulation

The EPD’s eventual replacement, the ePrivacy Regulation (EPR), will build upon the EPD and expand its definitions. (In the EU, a directive must be incorporated into national law by EU countries while a regulation becomes legally binding throughout the EU the date it comes into effect.)

The EPR was supposed to be passed in 2018 at the same time as the GDPR came into force. The EU obviously missed that goal, but there are drafts of the document online, and it is scheduled to be finalized sometime this year even though there is no still date for when it will be implemented. The EPR promises to address browser fingerprinting in ways that are similar to cookies, create more robust protections for metadata, and take into account new methods of communication, like WhatsApp.

The rules regulating cookies are still being set, and cookies themselves are continually evolving, which means maintaining a current cookie policy will be a continuous job. However, properly informing your users about the cookies your site is using and, when necessary, receiving their consent will keep your users happy and keep you GDPR-compliant.

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