European Union: Adopted EDPB Guidelines 2/2023 on technical scope of Art. 5(3) of the ePrivacy Directive

On 16 October 2024, the European Data Protection Board (EDPB) adopted guidelines addressing the applicability of Article 5(3) of the ePrivacy Directive to emerging tracking technologies. The guidelines build upon the previous Opinion 9/2014, focusing on device fingerprinting, and aim to clarify the directive's application to technologies such as URL and pixel tracking, local processing, and unique identifiers, among others. The guidelines are addressed to data controllers and individuals and aim to provide legal certainty. The EDPB clarifies the technologies which are covered by Art. 5(3) of the ePrivacy Directive, particularly regarding new and emerging tracking techniques. The guidelines define concepts in Art. 5(3) of the ePrivacy Directive and exemplify a few use cases with common tracking techniques. Further, the guidelines address possible solutions for new privacy risks that emerged due to the uncertainty regarding the scope of Art. 5(3) of the ePrivacy Directive.