GDPR vs ePrivacy Regulation

The main difference between GDPR and ePrivacy regulation is:

GDPR: Focus on protecting user’s personal data on the internet.

ePrivacy: In the same way that GDPR, ePrivacy regulation is focused on protecting users’ personal data, but eprivacy is more focused on protecting that company can’t track users and behaviors massively without the consent of the users.

If we resume in 2 sentences the main difference is:

GDPR focused in protect personal data and ePrivacy regulation focuses on regulating the use of cookies.

Obviously, it’s a vague comparative, but we can use this sentence as a basis to understand the focus of both regulations.

Since October the 31st of 2020, in Europe is mandatory that websites cannot track the behavior of their users without express consent. For this reason, we must work with consent management platforms like Cookiebot.

Nowadays we can find a lot of Cookieless Web Analytics, these cookie-free analytics really work without cookies, but the main mistake that we found is that all of them work with IP information.

If you work with IP data like clicks by country, you are not ePrivacy Compliant.

GDPR says you can work with IP data if this data is hashed or encrypted if this data is anonymous. BUT ePrivacy regulation says that you can’t work with data that can identify an individual person. Even if this data is hashed.

How can you know if Cookieless web analytics is working with IP data?

When you see a country report like clicks by country, they are not ePrivacy Compliant.

Remember this trick to differentiate GDPR vs ePrivacy focused:

GDPR wants to respect the privacy of users, so they agree we work with individual but anonymized data.

EPrivacy wants to protect users who can be tracked without consent, even if this tracking is anonymous. So if you track individualized users but anonymously, you are NOT ePrivacy Compliant so you must request consent, even you are working with cookieless analytics.

Two major frameworks that often come up in discussions are the ePrivacy Directive and the General Data Protection Regulation (GDPR). While they share some common ground, they also have distinct features that set them apart. This post aims to demystify these two regulatory frameworks, helping you understand their nuances and implications for your business.

Below is a table that compares the ePrivacy Directive and the General Data Protection Regulation (GDPR) on various aspects:

AspectePrivacy DirectiveGDPR
ScopeFocuses on electronic communicationsCovers all personal data
JurisdictionEU member statesGlobal, if processing EU citizens’ data
Legal FrameworkDirective, requires national legislationRegulation, directly applicable
EnforcementNational data protection authoritiesNational and EU-level data protection authorities
FinesVaries by member stateUp to €20 million or 4% of annual global turnover
Consent RequirementExplicit consent for cookies and communicationsExplicit consent for data processing
Data TypesElectronic communications dataAny personal data
User RightsLimited to communications privacyBroad (access, rectification, erasure, etc.)
Data SecurityRequired but not detailedDetailed requirements
Data Breach NotificationNot explicitly requiredMandatory within 72 hours
Data Controllers and ProcessorsNot explicitly definedClearly defined roles and responsibilities
Data TransfersLimited guidanceDetailed provisions for international data transfers
CookiesSpecifically regulatedCovered under lawful processing
Opt-In/Opt-OutOpt-In for marketing communicationsOpt-In for personal data processing

For a deeper dive into GDPR compliance, don’t forget to take this GDPR Compliance Test. To understand how to put privacy first in your business operations, visit Seal Metrics’ Privacy First page.

By understanding and complying with these regulations, you’re not just avoiding legal complications; you’re also building a brand that values customer trust and privacy.

The Scope of Regulations

ePrivacy Directive

The ePrivacy Directive is laser-focused on electronic communications. It aims to safeguard the privacy of users when they are using electronic communications services like email, instant messaging, and even some aspects of social media. This is particularly important for businesses that rely heavily on these channels for customer engagement.

GDPR

GDPR, on the other hand, has a much broader scope. It covers all personal data, not just electronic communications. This means that everything from a customer’s name and email address to their medical records falls under GDPR. If you’re collecting any form of personal data, you need to be aware of GDPR regulations. For a comprehensive understanding of your website’s GDPR compliance level, you can take this GDPR Compliance Test.

Jurisdiction

ePrivacy Directive

The ePrivacy Directive is limited to EU member states. However, each member state has the flexibility to enact its own national legislation based on the directive, leading to some variations in how the law is applied.

GDPR

GDPR has a global reach. It doesn’t matter where your business is located; if you’re processing the personal data of EU citizens, GDPR applies to you. This global applicability makes GDPR one of the most far-reaching data protection laws in the world.

Legal Framework and Enforcement

The ePrivacy Directive is a directive, meaning it requires national governments to enact legislation based on its guidelines. GDPR is a regulation, making it directly applicable without the need for national legislation. Both frameworks are enforced by national data protection authorities, but GDPR also involves EU-level data protection authorities like the European Data Protection Board (EDPB).

Fines and Penalties

Non-compliance comes with hefty fines for both frameworks. Under GDPR, fines can go up to €20 million or 4% of annual global turnover, whichever is higher. The ePrivacy Directive’s fines vary by member state and can also be substantial. Businesses must understand these penalties and take proactive steps to comply. For a detailed guide on how to put privacy first in your business, check out Seal Metrics’ Privacy First page.

Consent Requirements

Both frameworks require explicit user consent but in different contexts. The ePrivacy Directive requires explicit consent for cookies and electronic communications, while GDPR requires explicit consent for any data processing activity. This is where a Consent Management Platform can be invaluable, helping businesses automate obtaining and managing user consent.

Data Types and User Rights

The ePrivacy Directive focuses solely on electronic communications data. GDPR covers any personal data and provides broader user rights, including the right to access, rectify, and erase data. This is crucial for businesses to understand, as it impacts how they collect and manage data.

Data Security and Breach Notification

Both frameworks require robust data security measures, but GDPR goes further by mandating data breach notifications within 72 hours of discovery. This is a critical requirement that businesses must adhere to, failing which could result in severe penalties.

Conclusion

Understanding the differences between the ePrivacy Directive and GDPR is a legal necessity and a business imperative. Both frameworks have their own set of rules, penalties, and compliance requirements, making it crucial for businesses to understand them thoroughly. By adhering to these guidelines, you avoid legal pitfalls and build trust and credibility with your customers.