ePrivacy eller dePrivacy - Kartläggning av internetanvändare i den föreslagna ePrivacyförordningen

Sammanfattning: Today, internet users often face advertising that is tailored and selected to match their interests. To offer such targeted advertising the adtech sector use methods that rely on a large scale tracking of users’ internet activities. In most cases this tracking is performed by a third party to the service that the user is accessing. This makes it hard for individuals to know what information is collected and who has access to that information. The tracking technologies that are used today often entail some form of access to a user’s terminal equipment. An example of this is when a unique identifier is stored in a user’s internet browser which makes it possible for websites that the user visits to identify the user and consequently record and collect information relating to that user. Therefore, the tracking of internet users constitutes an intrusion on the right to privacy guaranteed by the Charter of Fundamental Rights of the European Union. The rules on when such access is permitted can be found in the ePrivacy directive. This directive will soon be replaced with an ePrivacy regulation, as part of a larger reform of the EU’s data protection system. One objective of this reform is to ensure the users’ trust in the processing of personal data in the digital economy. The European Commission specifically identifies user trust as a fundamental part of maximizing the growth potential of the digital economy. The purpose of this essay is to explore the EU law relating to the tracking of internet users, with a basis in the protection of users’ terminal equipment. This is done by first determining and applying the rules of today on a number of common tracking technologies. The essay concludes that the use of tracking technologies require the informed consent of the user. Following this, the essay then analyzes how these rules will change in the proposed ePrivacy regulation. The conclusion is that the rule of consent most likely will continue to be the principal rule. However, it is hard to determine the exact material changes that the ePrivacy regulation will bring about, considering that the two law makers currently have very differing opinions. The European Parliament has taken a stance that is very privacy friendly, while the stance of the Council of the European Union is more in line with the demands of the adtech sector. Based on the current proposals, the essay’s overall conclusion is that the base line of what the two law makers agree on does not constitute a large material change from the order of today. This is problematic considering that the tracking performed by the adtech sector has been heavily criticized for not complying with the individual’s fundamental rights and freedoms. Ultimately, the risk of not updating the rules and addressing these concerns is that the objective of the data protection reform to restore the users’ trust in the digital economy will be undermined.