ePrivacy Regulation 2026: What's Changing for Cookie Consent

What is the ePrivacy Regulation?

The ePrivacy Regulation (ePR) is a proposed EU law designed to replace the ePrivacy Directive 2002/58/EC, commonly known as the "Cookie Law." While the current Directive has been in place since 2002 (with amendments in 2009), it has faced criticism for inconsistent implementation across EU member states, creating a fragmented regulatory landscape for cookie consent and electronic communications.

Unlike a directive, which requires each member state to transpose it into national law, the ePrivacy Regulation will apply directly and uniformly across all 27 EU member states. This means businesses will no longer need to navigate different national interpretations—there will be one set of rules for the entire EU market.

Timeline: From Directive to Regulation

Understanding the history helps explain why change is needed. The ePrivacy framework has evolved significantly over two decades:

Key Changes in the ePrivacy Regulation

The ePrivacy Regulation introduces several significant changes that will affect how websites handle cookie consent and electronic communications. Here are the most important changes to understand:

ePrivacy Directive vs ePrivacy Regulation: Side-by-Side

Understanding the differences between the current framework and the upcoming regulation helps clarify what's actually changing:

Impact on Cookie Consent

The ePrivacy Regulation will have the most visible impact on cookie consent practices. Here's what website owners need to know:

1. Harmonized Consent Requirements

Currently, EU member states interpret cookie consent requirements differently. Germany requires explicit opt-in for most cookies, while other countries have been more lenient. The ePrivacy Regulation will establish a single, GDPR-aligned consent standard across the entire EU.

This means all cookies that are not "strictly necessary" for providing the service will require explicit, freely given, specific, informed, and unambiguous consent before being placed on a user's device.

2. Browser-Based Consent Management

One of the most significant changes is the requirement for browsers and similar software to offer users the ability to manage consent centrally. Instead of responding to cookie banners on every website, users could set their preferences once in their browser settings.

Browsers would need to offer at least these options:

• Accept all cookies
• Reject all third-party cookies
• Reject all cookies except strictly necessary
• Accept cookies only from specific first parties

Websites must respect these browser-level signals. If a user's browser signals "reject all non-essential cookies," websites cannot override this with their own consent mechanism.

3. Strictly Necessary Cookies Exemption

The regulation clarifies which cookies are exempt from consent requirements. "Strictly necessary" cookies that can be set without consent include:

• Session cookies for maintaining login state
• Shopping cart cookies for e-commerce
• Security cookies (CSRF protection, authentication)
• Load balancing cookies
• User interface customization cookies (language preference)
• First-party analytics with proper safeguards (possibly—still debated)

Notably, the exemption for first-party analytics remains contentious. Some proposals would allow basic audience measurement without consent if data is processed only by the website operator and not shared with third parties.

4. End of "Legitimate Interest" for Cookies

Under GDPR, some organizations have attempted to use "legitimate interest" as a legal basis for placing cookies. The ePrivacy Regulation makes clear that for cookies and similar tracking technologies, consent is the only valid legal basis (except for strictly necessary cookies).

This means marketing, advertising, and non-essential analytics cookies will always require explicit consent—there's no "legitimate interest" workaround.

Beyond Cookies: Broader Electronic Communications

While cookies get the most attention, the ePrivacy Regulation covers much more. It applies to all electronic communications, including:

How to Prepare Your Website

While the exact implementation date remains uncertain, smart website owners should begin preparing now. Here are actionable steps to ensure compliance:

1. Audit Your Current Cookie Usage

Start by understanding exactly what cookies your website uses and why. Create a comprehensive inventory that includes:

• Cookie name and domain
• Purpose (analytics, marketing, functionality, etc.)
• Duration (session vs. persistent)
• First-party vs. third-party
• Current legal basis for each cookie

This audit will help you identify which cookies genuinely need consent and which might qualify as strictly necessary.

2. Review Your Cookie Consent Mechanism

Evaluate your current cookie banner against these requirements:

3. Prepare for Browser-Based Consent

Start thinking about how your website will handle browser-level consent signals. When browser vendors implement the required settings, your site will need to:

• Detect and respect browser privacy signals
• Not display cookie banners when browser signals indicate clear preference
• Fall back to on-site consent mechanisms when no browser signal is present

Consider implementing support for existing standards like the Global Privacy Control (GPC) signal as practice for broader browser-based consent.

4. Reduce Third-Party Cookie Dependency

The advertising industry is already moving away from third-party cookies, and the ePrivacy Regulation will accelerate this trend. Consider:

• Investing in first-party data collection (with consent)
• Exploring contextual advertising alternatives
• Building direct relationships with your audience
• Testing server-side tracking with proper consent integration

5. Update Your Privacy Documentation

Ensure your cookie policy and privacy policy are up to date and clearly explain:

• What cookies you use and why
• How users can manage their preferences
• Your legal basis for each type of cookie
• Third parties who may set cookies on your site
• How long cookies persist and when they expire

ePrivacy Regulation and GDPR: How They Work Together

The ePrivacy Regulation is designed to complement GDPR, not replace it. Understanding how they interact is essential:

In practice, this means: even if you have valid consent to place a cookie (under ePR), you still need a valid legal basis under GDPR to process any personal data that cookie collects. Both regulations must be satisfied.

What About the UK?

Following Brexit, the UK is no longer bound by the EU's ePrivacy framework. However, the UK has retained similar rules through the Privacy and Electronic Communications Regulations (PECR), and cookie consent requirements remain largely aligned with EU standards.

If your website serves both UK and EU visitors, you'll need to comply with both PECR and the ePrivacy Regulation. Fortunately, a robust cookie consent mechanism that meets ePrivacy Regulation standards will likely satisfy UK requirements as well.

Industry Impact and Concerns

The ePrivacy Regulation has faced significant lobbying from the advertising industry, which partly explains the lengthy negotiation process. Key concerns include:

• Advertising revenue impact: Stricter consent requirements may reduce the volume of consented users available for targeted advertising
• Small business burden: Compliance costs for implementing proper consent mechanisms
• Innovation barriers: Concerns that strict rules could hamper development of new privacy-preserving technologies
• Enforcement consistency: Questions about how national DPAs will coordinate enforcement

However, privacy advocates argue that strong consent requirements are necessary to protect fundamental rights and that the industry has had years to prepare for this shift.

Frequently Asked Questions

When will the ePrivacy Regulation take effect?

The exact date remains uncertain due to ongoing negotiations. Once adopted, there will likely be a 24-month transition period. Based on current progress, full enforcement could begin around 2027-2028. Monitor official EU legislative channels for updates.

Will I need to change my cookie banner?

Most likely, yes. If your current banner doesn't already meet the strictest EU standards (like those in Germany), you'll need to upgrade. Key requirements include equal prominence for accept/reject options, no pre-checked boxes, and proper cookie blocking until consent.

Can I still use Google Analytics?

Yes, but you'll need valid consent before the tracking script loads. There may be provisions for basic, privacy-friendly analytics without consent, but this remains debated. Google Consent Mode v2 and server-side tracking may help maintain some functionality for users who don't consent.

What happens if I don't comply?

The ePrivacy Regulation introduces GDPR-level penalties: up to €20 million or 4% of annual global turnover, whichever is higher. Additionally, users and consumer protection organizations may bring private actions for violations.

Does this apply to non-EU businesses?

Yes. Like GDPR, the ePrivacy Regulation applies to any organization that processes electronic communications of EU residents or places cookies on devices of users in the EU, regardless of where the organization is located.

Will cookie banners disappear with browser-based consent?

Not entirely, but they should become less frequent. If a user's browser clearly signals their preferences, websites must respect that signal without showing additional banners. However, banners may still appear for users with no clear browser setting or for seeking consent beyond what browser signals cover.