European Parliament: Directive on Data Protection for Electronic Communication

IRIS 2002-7:1/10

Ruben Brouwer

Institute for Information Law (IViR), University of Amsterdam

On 30 May 2002, the European Parliament voted to accept a compromise on the proposed Directive concerning the processing of personal data and the protection of privacy in the electronic communications sector. The compromise had been negotiated between the Spanish Presidency of the European Union, the European Commission and the European Parliament. The formal adoption of the proposed Directive will take place in the next few months and is expected to take effect by the end of the year.

The proposed Directive aims to ensure that consumers and users obtain the same level of protection for their personal data and privacy, regardless of the technology used for the transmission of their electronic communications. It will replace Directive 97/66/EC concerning the processing of personal data and the protection of privacy in the telecommunications sector, which was adopted by the European Parliament and the Council on 15 December 1997. It will adapt and update the existing provisions to take account of new and foreseeable developments in electronic communications services and technologies.

By adopting the proposed Directive, the European Union will set a major precedent with its harmonised "opt-in" approach to unsolicited commercial e-mail, SMS messages and other electronic messages received on a mobile or fixed terminal. Further, a right is created for citizens to decide whether or not their phone numbers (mobile or fixed), e-mail addresses and physical addresses will feature in public directories.

Users of mobile electronic communication services are given the right of explicit consent for the use of privacy-sensitive location data indicating their exact whereabouts and besides that, these users should have the possibility to temporarily block the processing of the location data at any time. Invisible tracking devices for gathering information on Internet users (eg. cookies) may only be used if sufficient information about the purposes of such tools is supplied to the users. Internet users should also have the option of rejecting such tracking devices ("opt-out").

The retention of traffic data for law enforcement purposes is the subject of a newly worded section of the text that increases the human rights safeguards that must go along with national measures. Legally-binding provisions that would allow or prevent these measures are, however, not within the scope of the proposed Directive.