the derogation – a summary

This is an explainer the derogation being sought by the European Commision to Articles 5(1) and 6 of the ePrivacy Directive about to be updated by the Electronic Communication Code. It’s a little technical and lawyerly but then all good legislation is. This is my understanding of it and is subject to change since I’m not a lawyer.

The ePrivacy directive was issued in 2002 and with GDPR needed updating and this happened in 2018 as the European Electronic Communication Code. It is a directive and all member countries must transpose it – make it law in their countries. Failure to do this can result in legal action.

Now, countries had two years to transpose it and so all of the provisions of the EECC kick in on the 21^st December 2020. Definitions of electronic communications services and privacy will change and will include what are called “number-independent interpersonal communications services”. This will include webmail, messaging services and IP telephony. Essentially, therefore companies (such as Facebook, Google, Microsoft et al. who are now doing voluntary actions to find, report and remove Child Sexual Abuse Material and to find Groomers within their networks would run the risk of exposure to prosecution if they continued.

The derogation is simply a legal request to stay articles 5(1) and 6 of the ePrivacy for a short period while the commission gets a legal framework into place to allow companies to continue scanning for CSAM and Grooming activity. In other words, it’s asking tha tthe status quo remain in place for activities aimed at

The discussions as to whether the derogation will be allowed is ongoing and this is why we need to act now.

As already stated, if the derogation is not accepted or is watered down, there is a major risk that all efforts currently being made to find, report and remove CSAM and Grooming stop.

Here is what you can do to help:

Sign the petition