Privacy Protection In Electronic Communications

Profession:Kaltons Solicitors

With the release of a proposal by the European Parliament and the Council on 12 July 2000 to issue a directive concerning the processing of personal data and the protection of privacy in the electronic communications sector ('the draft Directive'), the Department of Trade and Industry ('DTI') has called for a consultation process to work out a UK response to the now on going negotiations on the draft Directive.

We at Kaltons certainly intend to participate in that consultation process and we would welcome any feedback from readers which would assist us in that process. First, however, we would like to outline the salient features of the draft Directive itself before turning to our contribution to the consultation process at a later date.

At the heart of the draft Directive is the intention to ensure that the content of electronic (as with all other types) of communications are not kept or stored and used by any person and that those who use electronic communications are not physically located through their use of such means, except with their consent or where emergency and national security reasons require otherwise. It also proposes to ban e-mail 'spam' throughout the EU.

Confidentiality Of Communications

The draft Directive - which is in fact intended to replace Directive 97/66/EC (the basis for the UK Data Protection Act 1998) and must be read together with it for the moment - requires member states to 'ensure the confidentiality of communications and the related traffic data by means of a public communications network and publicly available electronic communications services, through national legislation'. It is specifically targetted at the tapping and intercepting of such communications. It requires providers of publicly available communications services to provide for the security of their services and contemplates compensation for losses suffered if such security is not provided or where it fails.

Application & Definition

The primary object of the draft Directive is to create rules which are "technology neutral": in that communications by electronic means should be treated the same as communications by any other means. Thus consumers should get the same high level of privacy protection immaterial of the mode in which their services are delivered.

The draft Directive is to apply to all 'electronic communications services and networks'. This is an update of the pre-existing definition under Directive 97/66/EC and is intended to...

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