Decoding GDPR vs. ePrivacy: Navigating Data Protection in the Digital Age

It seems confusing! What's the difference between GDPR and ePrivacy? How do they work together, and why should all businesses that use data care about them?

It's understandable why people find it confusing to differentiate between GDPR and ePrivacy. While both regulations deal with data and privacy, they have distinct focuses and legal frameworks. Let’s explore this:

Core Differences:

• Scope:

  • GDPR: Protects personal data. This includes any information that can identify a natural person, such as name, email, location, or browsing habits.

  • ePrivacy: Focuses on electronic communication and privacy in the digital sphere. This includes areas like email, messaging apps, phone calls, and cookies on websites. It can also cover non-personal data like traffic data (e.g., IP addresses) in certain contexts.

• Legal Basis:

  • GDPR: Founded on the European Charter of Human Rights (Article 8) to protect individuals' fundamental rights regarding data privacy.

  • ePrivacy: Rooted in the European Charter of Human Rights (Article 7) to safeguard individuals' privacy in their private life, specifically in the context of electronic communication.

So GDPR and ePrivacy don’t work together?

While it may seem that GDPR and ePrivacy tackle separate issues, it's important to recognize how these regulations collaborate to fortify data protection measures. They work in tandem to safeguard individual privacy rights and uphold regulatory compliance standards.

• Complementary: While distinct, they work together to create a comprehensive data privacy framework in the EU.

• ePrivacy takes precedence: When both regulations apply to a specific situation, ePrivacy's rules on electronic communication and cookies supersede the GDPR.

• Example: Consent requirements for cookies fall under ePrivacy, not GDPR. However, the definition of valid consent aligns with the GDPR's standards.

Why do organizations increasingly need to understand & pay attention to GDPR and ePrivacy?

While GDPR and ePrivacy have distinct focuses and legal roots, they work together to create a robust data privacy framework in the EU. Every organization dealing with user data, especially in the digital realm, needs to grasp the nuances of both regulations to ensure compliance, build trust, and manage data privacy risks effectively. Specifically speaking, the following factors are important to consider:

• Compliance: Both regulations come with potential fines (some examples towards the end of this article) for non-compliance, making it crucial for organizations to understand them.

• Building Trust: Demonstrating adherence to these regulations fosters trust with users who value their data privacy.

• Risk Management: Understanding these regulations helps organizations identify and mitigate data privacy risks.

Then what about EU Data Governance Act (DGA)? How does it fit into all of this?

The EU Data Governance Act (DGA) is not directly part of the established data privacy framework, which includes both the General Data Protection Regulation (GDPR) and the ePrivacy Directive (ePD). However, they all work together to create a comprehensive system for data governance in the EU. Let’s quickly explore this:

Relationship with GDPR and ePrivacy:

• DGA is complementary: It aims to regulate the re-use of existing data (both personal and non-personal), focusing on facilitating data sharing and boosting the European data economy.

• DGA respects existing regulations: It explicitly states that it does not modify existing data protection rules like the GDPR and ePD.

• Focus on different aspects: While GDPR and ePrivacy ensure individual data privacy, DGA emphasizes transparency, interoperability, and security in data sharing practices.

Finally, how does all this work together:

• DGA leverages existing framework: It builds upon the strong foundation established by the GDPR and ePrivacy when dealing with personal data.

• DGA encourages GDPR compliance: For personal data re-use, the DGA explicitly requires adherence to GDPR principles for secure and anonymized data sharing.

• Combined effect: The combined effect of these regulations creates a robust system:

  • Individual privacy protection: Safeguarded by GDPR and ePrivacy.

  • Trust in data sharing: Facilitated by DGA's focus on transparency and security.

  • Responsible data re-use: Encouraged by DGA while respecting existing data protection frameworks.

My organization deals with a lot of data in the EU. Should I focus on GDPR or ePrivacy?

Organizations dealing with data in the EU need to be aware of all three regulations:

• GDPR and ePrivacy compliance remain essential for protecting individual data privacy.

• Understanding the DGA is crucial for businesses considering data re-use practices, as it outlines the rules and requirements for responsible data sharing.

Overall, the DGA complements the existing data privacy framework, aiming to unlock the potential of data sharing while ensuring it happens in a trustworthy and secure manner that respects individual privacy rights.

Data privacy rules like GDPR seem costly, and don't always lead to direct sales. Are they really worth the hassle? What are the risks of ignoring them?

Non-compliance to GDPR or ePrivacy can result in huge fines. You surely do not want to end up in this space. Here are just a few examples of the companies that ignored them in the last two years:

1. Meta Platforms (Ireland) - €1.2 Billion (May 2023) - GDPR:

• Violation: Transferring personal data of European users to the US without adequate safeguards, violating the GDPR's international data transfer provisions.

• Reasoning: The Irish Data Protection Commission (DPC) found Meta failed to comply with the Schrems II ruling from the EU Court of Justice, which invalidated the EU-US Privacy Shield framework used for data transfers.

2. Amazon (Luxembourg) - €746 Million (July 2021) - GDPR:

• Violation: Processing personal data for targeted advertising without proper consent from users.

• Reasoning: The Luxembourg National Commission for Data Protection (CNPD) found Amazon's advertising practices lacked a valid legal basis for processing user data, resulting in the hefty fine.

3. WhatsApp (Ireland) - €225 Million (September 2021) - GDPR:

• Violation: Failing to adequately explain its data processing practices in its privacy notice.

• Reasoning: The DPC found WhatsApp's privacy notice lacked transparency regarding how it collected and used user data, making it difficult for users to understand their privacy rights.

4. Google LLC (France) - €90 Million (January 2023) - ePrivacy:

• Violation: Failing to obtain valid consent for personalized ad targeting based on user browsing activity.

• Reasoning: The French data protection authority (CNIL) found Google's cookie consent practices violated the ePrivacy Directive by not providing clear and unambiguous options for users to reject personalized advertising.

5. TikTok (Ireland) - €14.5 Million (March 2023) - GDPR:

• Violation: Failing to properly notify children (under 13) about data collection and obtain parental consent.

• Reasoning: The DPC found TikTok violated the GDPR by processing children's data without proper legal grounds and failing to comply with specific requirements for data collection in the context of children.

These examples highlight the potential financial and reputational consequences of non-compliance with data privacy regulations in the EU. Organizations operating in the EU or handling data of EU citizens should be familiar with both GDPR and ePrivacy to ensure responsible data practices and avoid hefty fines.