The ePrivacy Regulation suffers from scarce evidence
July 17th 2017
The Impact Assessment Institute raises major concerns regarding the evidence supporting the ePrivacy regulation. The data gathering in the Impact Assessment lacks transparency. Robust evidence is missing for the problem definition and key provisions on consent and tracking. Impacts on Fundamental Rights were not adequately assessed, although they constitute a legal basis of the proposal. Furthermore, the Institute identified incompatibilities with the GDPR and the EECC.
The IAI has reviewed the evaluation, Impact Assessment and legislative proposal for a Regulation on the confidentiality of electronic communications (ePrivacy). The proposed provisions are not underpinned by solid evidence. Key steps of the Impact Assessment (e.g. the problem definition) rely almost exclusively on consultations and surveys. Such data cannot be considered as evidence, being based on the opinions of a relatively small range of stakeholders.
Furthermore, the real causes for the problems highlighted in the ex post evaluation have not been identified. As a consequence, the policy options in the IA might not offer effective solutions to tackle the identified problems. The subsidiarity and proportionality checks have only been partly carried out. Additional evidence would be needed to support the extension of the scope to OTT services.
The Commission has stressed its proposal aims at reinforcing the users’ protection of the Fundamental Rights. Nevertheless, the Impact Assessment focuses exclusively on finding the most economically efficient solution. It is therefore unsure whether some of the new dispositions in the proposal are in line with Fundamental Rights. In particular, the new dispositions on tracking via browser settings may not comply with the definition of consent in the GDPR.
Many of the shortcomings appear to be a consequence of insufficient time allowed to complete a sound and robust Impact Assessment. The IAI recommends reassessing the evidence on the key provisions based on robust data to inform further decision making.