What is the ePrivacy Directive and Why Does It Matter?
Understanding the real law behind cookie banners and marketing consent
When people think about privacy laws, GDPR usually comes to mind first. And it is true. GDPR changed how companies handle personal data forever.
But there is another important law that often gets overlooked: the ePrivacy Directive.
If you run a website, send marketing emails, or use cookies, the ePrivacy Directive affects you every day.
It is the real reason cookie banners exist. Not GDPR.
🧠 What is the ePrivacy Directive?
The ePrivacy Directive (Directive 2002/58/EC) is a European law that focuses on electronic communications.
It covers things like:
- How companies can store or access information on a user's device (like cookies)
- Rules for marketing emails, text messages, and phone calls
- How communication confidentiality must be protected
The Directive is separate from GDPR, but they work together. While GDPR regulates personal data more broadly, ePrivacy specifically targets how we use technologies to communicate and track users.
🍪 Cookies and consent
The most visible part of ePrivacy for most companies is the cookie consent rule.
Under the ePrivacy Directive:
- You cannot place cookies (or similar technologies) on a user’s device without consent, unless they are strictly necessary.
- "Strictly necessary" means essential for providing the service the user actually requested (like remembering what is in a shopping cart).
Everything else, such as analytics, tracking, or personalization, requires clear, prior consent.
This is why you see cookie banners today.
The ePrivacy Directive created the requirement for cookie consent. Later, GDPR raised the standards for how consent must be collected — consent must now be freely given, specific, informed, and unambiguous.
Together, these laws transformed simple cookie notifications into the full "Accept" or "Manage Preferences" banners we know today.
📬 Marketing and communications
ePrivacy also regulates marketing communications.
For example:
- You must have consent before sending marketing emails to individuals (with a few narrow exceptions).
- Cold calling, text messages, and fax marketing are also restricted in most cases.
- Companies must always offer a simple way to opt-out of marketing communications.
🔄 ePrivacy vs GDPR: how they fit together
- ePrivacy tells you when and whether you need consent for electronic communication and device tracking.
- GDPR tells you how to obtain, document, and manage that consent properly.
If you get consent for cookies under ePrivacy, it must meet the high standards of GDPR. Consent must be freely given, specific, informed, and unambiguous.
Together, these laws form the backbone of online privacy rules in Europe.
🚀 What about the ePrivacy Regulation?
You may have heard that a new ePrivacy Regulation is coming. It would replace the old Directive and make the rules stronger and more consistent across the EU.
But negotiations have dragged on for years, and as of today, the Directive is still the law companies must follow.
That means you cannot afford to ignore ePrivacy, even if GDPR already takes a lot of your compliance energy.
🧩 Why it matters for your company
If you run a website, use analytics tools, send newsletters, or advertise online, ePrivacy is not optional.
Violations can lead to fines, reputational damage, and loss of user trust.
Good cookie practices, clear consent mechanisms, and careful marketing policies are not just about being nice. They are legal requirements under ePrivacy.
ToolHive helps you organize your tools, manage consents, and track compliance tasks. Start your free trial today and take control of your privacy journey.