### the services used for communications purposes , and the technical means of their delivery , have evolved considerably . end - users increasingly replace traditional voice telephony , text messages and electronic mail conveyance services in favour of functionally equivalent online services such as voice over ip , messaging services and web - based e - mail services . in order to ensure an effective and equal protection of end - users when using functionally equivalent services , this regulation uses the definition of electronic communications services set forth in the [ directive of the european parliament and of the council establishing the european electronic communications code24 ] . that definition encompasses not only internet access services and services consisting wholly or partly in the conveyance of signals but also interpersonal communications services , which may or may not be number - based , such as for example , voice over ip , messaging services and web - based e - mail services . the protection of confidentiality of communications is crucial also as regards interpersonal communications services that are ancillary to another service ; therefore , such type of services also having a communication functionality should be covered by this regulation . _________________ 24 commission proposal for a directive of the european parliament and of the council establishing the european electronic communications code ) . ### the services used for communications purposes , and the technical means of their delivery , have evolved considerably . users and subscribers increasingly replace traditional voice telephony , text messages and electronic mail conveyance services in favour of functionally equivalent online services such as voice over ip , messaging services and web - based e - mail services , also known as “over - the - top services” . this regulation aims at ensuring an effective and equal protection of users and subscribers when using functionally equivalent services , so as to ensure the confidentiality of their communication , irrespective of the technological medium chosen . . that definition encompasses not only internet access services and services consisting wholly or partly in the conveyance of signals but also interpersonal communications services , which may or may not be number - based , such as for example , voice over ip , messaging services and web - based e - mail services . the protection of confidentiality of communications is crucial also as regards interpersonal communications services that are ancillary to another service , such as internal messaging , newsfeeds , timelines and similar functions in online services where messages are exchanged with other users within or outside that service ; therefore , such type of services also having a communication functionality should be covered by this regulation .


### for the sole purpose of the provision of a specific service to an end - user , if the end - user or end - users concerned have given their consent to the processing of his or her electronic communications content and the provision of that service cannot be fulfilled without the processing of such content ; or ### the user concerned has given his or her consent to the processing of his or her electronic communications content for the sole purpose of the provision of a specific service explicitly requested by the user , for the duration necessary for that purpose , , provided that the provision of that specific service cannot be fulfilled without the processing of such content by the provider , and the consent has not been a condition to access or use a service ; or


### the commission shall be empowered to adopt implementing measures in accordance with article 26 specifying the code / or prefix to identify marketing calls , pursuant to point of paragraph 3 . ### the commission shall be empowered to adopt implementing measures in accordance with article 26 specifying the code or prefix to identify marketing calls , pursuant to point of paragraph 3 .


### infringements of the principle of confidentiality of communications , permitted processing of electronic communications data , time limits for erasure pursuant to articles 5 , 6 , and 7 shall , in accordance with paragraph 1 of this article , be subject to administrative fines up to 20 000 000 eur , or in the case of an undertaking , up to 4 % of the total worldwide annual turnover of the preceding financial year , whichever is higher . ### infringements of the following provisions of this regulation shall , in accordance with paragraph 1 , be subject to administrative fines up to 20 000 000 eur , or in the case of an undertaking , up to 4 % of the total worldwide annual turnover of the preceding financial year , whichever is higher :


### the services used for communications purposes , and the technical means of their delivery , have evolved considerably . end - users increasingly replace traditional voice telephony , text messages and electronic mail conveyance services in favour of functionally equivalent online services such as voice over ip , messaging services and web - based e - mail services . in order to ensure an effective and equal protection of end - users when using functionally equivalent services , this regulation uses the definition of electronic communications services set forth in the [ directive of the european parliament and of the council establishing the european electronic communications code24 ] . that definition encompasses not only internet access services and services consisting wholly or partly in the conveyance of signals but also interpersonal communications services , which may or may not be number - based , such as for example , voice over ip , messaging services and web - based e - mail services . the protection of confidentiality of communications is crucial also as regards interpersonal communications services that are ancillary to another service ; therefore , such type of services also having a communication functionality should be covered by this regulation . __________________ 24 commission proposal for a directive of the european parliament and of the council establishing the european electronic communications code ) . ### the services used for communications purposes , and the technical means of their delivery , have evolved considerably . end - users increasingly replace traditional voice telephony , text messages and electronic mail conveyance services in favour of functionally equivalent online services such as voice over ip , messaging services and web - based e - mail services . in order to ensure an effective and equal protection of end - users when using functionally equivalent services , this regulation uses the definition of electronic communications services set forth in the [ directive of the european parliament and of the council establishing the european electronic communications code24 ] . that definition encompasses not only internet access services and services consisting wholly or partly in the conveyance of signals but also interpersonal communications services , which may or may not be number - based , such as for example , voice over ip , messaging services and web - based e - mail services . the protection of confidentiality of communications is crucial also as regards interpersonal communications services that are ancillary to another service , such as internal messaging , newsfeeds , timelines and similar functions in online services where messages are exchanged with other users within or outside that service ; therefore , such type of services also having a communication functionality should be covered by this regulation . __________________ 24 commission proposal for a directive of the european parliament and of the council establishing the european electronic communications code ) .


### where a natural or legal person obtains electronic contact details for electronic mail from its customer , in the context of the sale of a product or a service , in accordance with regulation 2016 / 679 , that natural or legal person may use these electronic contact details for direct marketing of its own similar products or services only if customers are clearly and distinctly given the opportunity to object , free of charge and in an easy manner , to such use . the right to object shall be given at the time of collection and each time a message is sent . ### where a natural or legal person obtains electronic contact details for e - mail from its customer , in the context of the sale of a product or a service , in accordance with regulation 2016 / 679 , that natural or legal person may use these electronic contact details for direct marketing of its own products or services only if customers are clearly and distinctly given the opportunity to object , free of charge and in an easy manner , to such use . the customer shall be informed about the right to object and shall be given an easy way to exercise it at the time of collection and each time a message is sent .


### pursuant to article 8 of the charter and article 16 of the treaty on the functioning of the european union , everyone has the right to the protection of personal data concerning him or her . regulation 2016 / 679 lays down rules relating to the protection of natural persons with regard to the processing of personal data and rules relating to the free movement of personal data . electronic communications data may include personal data as defined in regulation 2016 / 679 . ### pursuant to article 8 of the charter and article 16 of the treaty on the functioning of the european union , everyone has the right to the protection of personal data concerning him or her . regulation 2016 / 679 lays down rules relating to the protection of natural persons with regard to the processing of personal data and rules relating to the free movement of personal data . electronic communications data are generally personal data as defined in regulation 2016 / 679 , at least where the users or subscribers are natural persons .


### it is necessary for billing , calculating interconnection payments , detecting or stopping fraudulent , or abusive use of , or subscription to , electronic communications services ; or ### it is strictly necessary for billing , calculating interconnection payments , detecting or stopping fraudulent use of , or subscription to , electronic communications services ; or


### the independent supervisory authority or authorities responsible for monitoring the application of regulation 2016 / 679 shall also be responsible for monitoring the application of this regulation . chapter vi and vii of regulation 2016 / 679 shall apply mutatis mutandis . the tasks and powers of the supervisory authorities shall be exercised with regard to end - users . ### the independent supervisory authority or authorities responsible for monitoring the application of regulation 2016 / 679 shall also be responsible for monitoring the application of this regulation . chapter vi and vii of regulation 2016 / 679 shall apply mutatis mutandis . where regulation 2016 / 679 refers to data subjects , the tasks and powers of the supervisory authorities shall be exercised with regard to users and subscribers under this regulation . where regulation 2016 / 679 refers to data controllers , the tasks and powers of the supervisory authorities shall be exercised with regard to providers of electronic communications services and information society services , and manufacturers of hardware and software under this regulation .


### the content of electronic communications may reveal highly sensitive information about the natural persons involved in the communication , from personal experiences and emotions to medical conditions , sexual preferences and political views , the disclosure of which could result in personal and social harm , economic loss or embarrassment . similarly , metadata derived from electronic communications may also reveal very sensitive and personal information . these metadata includes the numbers called , the websites visited , geographical location , the time , date and duration when an individual made a call etc . , allowing precise conclusions to be drawn regarding the private lives of the persons involved in the electronic communication , such as their social relationships , their habits and activities of everyday life , their interests , tastes etc . ### electronic communications data may reveal highly sensitive information about the natural persons involved in the communication , from personal experiences and emotions to medical conditions , sexual preferences and political views , the disclosure of which could result in personal and social harm , economic loss or embarrassment . for the content of communications , the court of justice has clarified that access on a generalised basis by parties other than the communication partners and the communications service provider must be regarded as compromising the essence of the fundamental right to respect for private life , which is never acceptable . similarly , metadata derived from electronic communications may also reveal very sensitive and personal information . these metadata includes the numbers called , the websites visited , geographical location , the time , date and duration when an individual made a call etc . , allowing precise conclusions to be drawn regarding the private lives of the persons involved in the electronic communication , such as their social relationships , their habits and activities of everyday life , their interests , tastes etc . metadata can also be processed and analysed much easier than content , as it is already brought into a structured and standardised format . the protection of confidentiality of communications is an essential condition for the respect of other connected fundamental rights and freedoms , such as the protection of freedom of thought , conscience and religion , freedom of assembly , freedom of expression and information .


### the content of electronic communications pertains to the essence of the fundamental right to respect for private and family life , home and communications protected under article 7 of the charter . any interference with the content of electronic communications should be allowed only under very clear defined conditions , for specific purposes and be subject to adequate safeguards against abuse . this regulation provides for the possibility of providers of electronic communications services to process electronic communications data in transit , with the informed consent of all the end - users concerned . for example , providers may offer services that entail the scanning of emails to remove certain pre - defined material . given the sensitivity of the content of communications , this regulation sets forth a presumption that the processing of such content data will result in high risks to the rights and freedoms of natural persons . when processing such type of data , the provider of the electronic communications service should always consult the supervisory authority prior to the processing . such consultation should be in accordance with article 36 and of regulation 2016 / 679 . the presumption does not encompass the processing of content data to provide a service requested by the end - user where the end - user has consented to such processing and it is carried out for the purposes and duration strictly necessary and proportionate for such service . after electronic communications content has been sent by the end - user and received by the intended end - user or end - users , it may be recorded or stored by the end - user , end - users or by a third party entrusted by them to record or store such data . any processing of such data must comply with regulation 2016 / 679 . ### the content of electronic communications pertains to the essence of the fundamental right to respect for private and family life , home and communications protected under article 7 of the charter . this regulation provides for the possibility of providers of electronic communications services to process electronic communications data at rest or in transit , with the informed consent of all the users concerned . for example , providers may offer services that entail the scanning of e - mails to remove certain pre - defined material . given the sensitivity of the content of communications , this regulation sets forth a presumption that the processing of such content data will result in high risks to the rights and freedoms of natural persons . when processing such type of data , the provider of the electronic communications service should always consult the supervisory authority prior to the processing . such consultation should be in accordance with article 36 and of regulation 2016 / 679 . the presumption does not encompass the processing of content data to provide a service requested by the user where the user has consented to such processing and it is carried out for the purposes and duration strictly necessary and proportionate for such service . after electronic communications content has been sent by the user and received by the intended user or users , it may be recorded or stored by the user , users or by another party entrusted by them to record or store such data . any processing of such data must comply with regulation 2016 / 679 .


### this regulation applies to the processing of electronic communications data carried out in connection with the provision and the use of electronic communications services and to information related to the terminal equipment of end - users . ### this regulation applies to :


### ‘ electronic communications content’ means the content exchanged by means of electronic communications services , such as text , voice , videos , images , and sound ; ### ' electronic communications content ' means the content transmitted by means of publically available electronic communications services , such as text , voice , videos , images , and sound ;


### electronic communications data should be treated as confidential . this means that any interference with the transmission of electronic communications data , whether directly by human intervention or through the intermediation of automated processing by machines , without the consent of all the communicating parties should be prohibited . the prohibition of interception of communications data should apply during their conveyance , i . e . until receipt of the content of the electronic communication by the intended addressee . interception of electronic communications data may occur , for example , when someone other than the communicating parties , listens to calls , reads , scans or stores the content of electronic communications , or the associated metadata for purposes other than the exchange of communications . interception also occurs when third parties monitor websites visited , timing of the visits , interaction with others , etc . , without the consent of the end - user concerned . as technology evolves , the technical ways to engage in interception have also increased . such ways may range from the installation of equipment that gathers data from terminal equipment over targeted areas , such as the so - called imsi catchers , to programs and techniques that , for example , surreptitiously monitor browsing habits for the purpose of creating end - user profiles . other examples of interception include capturing payload data or content data from unencrypted wireless networks and routers , including browsing habits without the end - users’ consent . ### electronic communications data should be treated as confidential . this means that any processing of electronic communications data or any interference with the transmission of electronic communications data , whether directly by human intervention or through the intermediation of automated processing by machines , without the consent of the user requesting a specific service or of all the communicating parties should be prohibited . when the processing is allowed under this regulation , any other processing on the basis of article 6 of regulation 2016 / 679 should be considered as prohibited , including processing for another purpose on the basis of article 6 of that regulation . the prohibition of processing of communications data should apply during their conveyance and when they are stored afterwards , in order to reflect the growing trend that subscribers do not store all communications data on their own terminal equipment , but use cloud - based storage space of the communications provider or other parties . interception of electronic communications data may occur , for example , when someone other than the communicating parties , listens to calls , reads , scans or stores the content of electronic communications , or the associated metadata for purposes other than the exchange of communications . interception also occurs when third parties monitor websites visited , timing of the visits , interaction with others , etc . , without the consent of the end - user concerned . as technology evolves , the technical ways to engage in interception have also increased . such ways may range from the installation of equipment that gathers data from terminal equipment over targeted areas , such as the so - called imsi catchers , to programs and techniques that , for example , surreptitiously monitor browsing habits for the purpose of creating end - user profiles . other examples of interception include capturing payload data or content data from unencrypted wireless networks and routers , and analysis of customers’ traffic data , including browsing habits without the users’ consent .


### the development of fast and efficient wireless technologies has fostered the increasing availability for the public of internet access via wireless networks accessible by anyone in public and semi - private spaces such as ' hotspots ' situated at different places within a city , department stores , shopping malls and hospitals . to the extent that those communications networks are provided to an undefined group of end - users , the confidentiality of the communications transmitted through such networks should be protected . the fact that wireless electronic communications services may be ancillary to other services should not stand in the way of ensuring the protection of confidentiality of communications data and application of this regulation . therefore , this regulation should apply to electronic communications data using electronic communications services and public communications networks . in contrast , this regulation should not apply to closed groups of end - users such as corporate networks , access to which is limited to members of the corporation . ### the development of fast and efficient wireless technologies has fostered the increasing availability for the public of internet access via wireless networks accessible by anyone in public and semi - private spaces such as wi - fi access points situated at different places within a city , for example department stores , shopping malls and hospitals , as well as airports , hotels and restaurants . those wi - fi access points might require a login or provide a password and might be provided also by public administrations . to the extent that those communications networks are provided to users , the confidentiality of the communications transmitted through such networks should be protected . the fact that wireless electronic communications services may be ancillary to other services should not stand in the way of ensuring the protection of confidentiality of communications data and application of this regulation . therefore , this regulation should apply to electronic communications data using electronic communications services and public communications networks . in addition , this regulation should apply to closed social media profiles and groups that the user has restricted or defined as private . in contrast , this regulation should not apply to closed groups of end - users such as corporate intranet networks , access to which is limited to members of an organisation .


### the development of fast and efficient wireless technologies has fostered the increasing availability for the public of internet access via wireless networks accessible by anyone in public and semi - private spaces such as ‘ hotspots’ situated at different places within a city , department stores , shopping malls and hospitals . to the extent that those communications networks are provided to an undefined group of end - users , the confidentiality of the communications transmitted through such networks should be protected . the fact that wireless electronic communications services may be ancillary to other services should not stand in the way of ensuring the protection of confidentiality of communications data and application of this regulation . therefore , this regulation should apply to electronic communications data using electronic communications services and public communications networks . in contrast , this regulation should not apply to closed groups of end - users such as corporate networks , access to which is limited to members of the corporation . ### the development of fast and efficient wireless technologies has fostered the increasing availability for the public of internet access via wireless networks accessible by anyone in public and semi - private spaces such as wireless internet access points situated at different places within a city , department stores , shopping malls , hospitals , airports , hotels and restaurants . those access points might require a login or provide a password and might be provided also by public administrations , including union bodies and agencies . to the extent that those communications networks are provided to users , the confidentiality of the communications transmitted through such networks should be protected . the fact that wireless electronic communications services may be ancillary to other services should not stand in the way of ensuring the protection of confidentiality of communications data and application of this regulation . therefore , this regulation should apply to electronic communications data using electronic communications services and public communications networks . this regulation should also apply to closed social media profiles and groups that the users have defined as private . in contrast , this regulation should not apply to closed groups of subscribers such as corporate networks , access to which is limited to members of an organisation .


### the principles of data protection by design and by default were codified under article 25 of regulation 2016 / 679 . currently , the default settings for cookies are set in most current browsers to ‘ accept all cookies’ . therefore providers of software enabling the retrieval and presentation of information on the internet should have an obligation to configure the software so that it offers the option to prevent third parties from storing information on the terminal equipment ; this is often presented as ‘ reject third party cookies’ . end - users should be offered a set of privacy setting options , ranging from higher to lower and intermediate . such privacy settings should be presented in an easily visible and intelligible manner . ### the principles of data protection by design and by default were codified under article 25 of regulation 2016 / 679 . currently , the default settings for cookies are set in most current browsers to ‘ accept all cookies’ . therefore providers of hardware or software enabling the retrieval and presentation of information on the internet should have an obligation to configure the software so that it offers and activates as default the option to prevent the cross - domain tracking and storing information on the terminal equipment by other parties ; this is often presented as ‘ reject third party trackers and cookies’ . users should be offered a set of privacy setting options , ranging from higher to lower and intermediate . these options may also be more fine - grained and , among other aspects , reflect the possibility that another party might act as a data processor within the meaning of regulation 2016 / 679 for the provider of the service . privacy settings should also include options to allow the user to decide for example , whether multimedia players , interactive programming language viewers , or similar software can be executed , if a website can collect geo - location data from the user , or if it can access specific hardware such as a webcam or microphone . such privacy settings should be presented in an easily visible and intelligible manner , and at the moment of installation or first use , users should be informed about the possibility to change the default privacy settings among the various options . information provided should not dissuade users from selecting higher privacy settings and should include relevant information about the risks associated to allowing cross - domain trackers , including the compilation of long - term records of individuals’ browsing histories and the use of such records to send targeted advertising or sharing with more third parties . hardware and software manufacturers should be required to provide easy ways for users to change the privacy settings at any time during use and to allow the user to make exceptions for or to whitelist certain information society services or to specify for such services websites trackers and cookies are always or never allowed . in case of no active choice , or action from the user , the settings shall be set by default in a manner that rejects and blocks trackers , including cookies , that are not strictly necessary in order to provide an information society service specifically requested by the user .


### terminal equipment of end - users of electronic communications networks and any information relating to the usage of such terminal equipment , whether in particular is stored in or emitted by such equipment , requested from or processed in order to enable it to connect to another device and or network equipment , are part of the private sphere of the end - users requiring protection under the charter of fundamental rights of the european union and the european convention for the protection of human rights and fundamental freedoms . given that such equipment contains or processes information that may reveal details of an individual ' s emotional , political , social complexities , including the content of communications , pictures , the location of individuals by accessing the device’s gps capabilities , contact lists , and other information already stored in the device , the information related to such equipment requires enhanced privacy protection . furthermore , the so - called spyware , web bugs , hidden identifiers , tracking cookies and other similar unwanted tracking tools can enter end - user ' s terminal equipment without their knowledge in order to gain access to information , to store hidden information and to trace the activities . information related to the end - user’s device may also be collected remotely for the purpose of identification and tracking , using techniques such as the so - called ‘ device fingerprinting’ , often without the knowledge of the end - user , and may seriously intrude upon the privacy of these end - users . techniques that surreptitiously monitor the actions of end - users , for example by tracking their activities online or the location of their terminal equipment , or subvert the operation of the end - users’ terminal equipment pose a serious threat to the privacy of end - users . therefore , any such interference with the end - user ' s terminal equipment should be allowed only with the end - user ' s consent and for specific and transparent purposes . ### terminal equipment of users of electronic communications networks and any information relating to the usage of such terminal equipment , whether in particular is stored in or emitted by such equipment , requested from or processed in order to enable it to connect to another device and or network equipment , are part of the private sphere of the users requiring protection under the charter of fundamental rights of the european union and the european convention for the protection of human rights and fundamental freedoms . given that such equipment contains or processes very sensitive data that may reveal details of the behaviour , psychological features , emotional condition and political and social preferences of an individual , including the content of communications , pictures , the location of individuals by accessing the gps capabilities of their device , contact lists , and other information already stored in the device , the information related to such equipment requires enhanced privacy protection . information related to the user’s device may also be collected remotely for the purpose of identification and tracking , using techniques such as the so - called ‘ device fingerprinting’ , often without the knowledge of the user , and may seriously intrude upon the privacy of these users . furthermore , so - called spyware , web bugs , hidden identifiers and unwanted tracking tools can enter users ' terminal equipment without their knowledge in order to gain access to information or to store hidden information . techniques that surreptitiously monitor the actions of users , for example by tracking their activities online or the location of their terminal equipment , or subvert the operation of the users’ terminal equipment pose a serious threat to the privacy of users . therefore , any such interference with the user ' s terminal equipment should be allowed only with the user ' s consent and for specific and transparent purposes . users should receive all relevant information about the intended processing in clear and easily understandable language . such information should be provided separately from the terms and conditions of the service .


### exceptions to the obligation to obtain consent to make use of the processing and storage capabilities of terminal equipment or to access information stored in terminal equipment should be limited to situations that involve no , or only very limited , intrusion of privacy . for instance , consent should not be requested for authorizing the technical storage or access which is strictly necessary and proportionate for the legitimate purpose of enabling the use of a specific service explicitly requested by the end - user . this may include the storing of cookies for the duration of a single established session on a website to keep track of the end - user’s input when filling in online forms over several pages . cookies can also be a legitimate and useful tool , for example , in measuring web traffic to a website . information society providers that engage in configuration checking to provide the service in compliance with the end - user ' s settings and the mere logging of the fact that the end - user’s device is unable to receive content requested by the end - user should not constitute access to such a device or use of the device processing capabilities . ### exceptions to the obligation to obtain consent to make use of the processing and storage capabilities of terminal equipment or to access information stored in terminal equipment should be limited to situations that involve no , or only very limited , intrusion of privacy . for instance , consent should not be requested for authorizing the technical storage or access which is strictly necessary and proportionate for the legitimate purpose of enabling the use of a specific service explicitly requested by the user . this may include the storing of information for the duration of a single established session on a website to keep track of the user’s input when filling in online forms over several pages . tracking techniques , if implemented with appropriate privacy safeguards , can also be a legitimate and useful tool , for example , in measuring web traffic to a website . information society providers could engage in configuration checking in order to provide the service in compliance with the user ' s settings and the mere logging revealing the fact that the user’s device is unable to receive content requested by the user , should not constitute illegitimate access .


### electronic communications data should be defined in a sufficiently broad and technology neutral way so as to encompass any information concerning the content transmitted or exchanged and the information concerning an end - user of electronic communications services processed for the purposes of transmitting , distributing or enabling the exchange of electronic communications content ; including data to trace and identify the source and destination of a communication , geographical location and the date , time , duration and the type of communication . whether such signals and the related data are conveyed by wire , radio , optical or electromagnetic means , including satellite networks , cable networks , fixed and mobile terrestrial networks , electricity cable systems , the data related to such signals should be considered as electronic communications metadata and therefore be subject to the provisions of this regulation . electronic communications metadata may include information that is part of the subscription to the service when such information is processed for the purposes of transmitting , distributing or exchanging electronic communications content . ### electronic communications data should be defined in a sufficiently broad and technology neutral way so as to encompass any information concerning the content transmitted or exchanged and the information concerning an end - user of electronic communications services processed for the purposes of transmitting , distributing or enabling the exchange of electronic communications content ; including data to trace and identify the source and destination of a communication , geographical location and the date , time , duration and the type of communication . it should also include location data , such as the location of the terminal equipment from or to which a phone call or an internet connection has been made or the wireless access points that a device is connected to . it should also include data necessary to identify users’ terminal equipment and data emitted by terminal equipment when searching for access points or other equipment . whether such signals and the related data are conveyed by wire , radio , optical or electromagnetic means , including satellite networks , cable networks , fixed and mobile terrestrial networks , electricity cable systems , the data related to such signals should be considered as electronic communications metadata and therefore be subject to the provisions of this regulation . electronic communications metadata may include information that is part of the subscription to the service when such information is processed for the purposes of transmitting , distributing or exchanging electronic communications content . the exclusion of services providing “content transmitted using electronic communications networks” from the definition of “electronic communications service” in article 4 of this regulation does not mean that service providers who offer both electronic communications services and content services are outside the scope of the provisions of the regulation which applies to the providers of electronic communications services .


### the content of electronic communications pertains to the essence of the fundamental right to respect for private and family life , home and communications protected under article 7 of the charter . any interference with the content of electronic communications should be allowed only under very clear defined conditions , for specific purposes and be subject to adequate safeguards against abuse . this regulation provides for the possibility of providers of electronic communications services to process electronic communications data in transit , with the informed consent of all the end - users concerned . for example , providers may offer services that entail the scanning of emails to remove certain pre - defined material . given the sensitivity of the content of communications , this regulation sets forth a presumption that the processing of such content data will result in high risks to the rights and freedoms of natural persons . when processing such type of data , the provider of the electronic communications service should always consult the supervisory authority prior to the processing . such consultation should be in accordance with article 36 and of regulation 2016 / 679 . the presumption does not encompass the processing of content data to provide a service requested by the end - user where the end - user has consented to such processing and it is carried out for the purposes and duration strictly necessary and proportionate for such service . after electronic communications content has been sent by the end - user and received by the intended end - user or end - users , it may be recorded or stored by the end - user , end - users or by a third party entrusted by them to record or store such data . any processing of such data must comply with regulation 2016 / 679 . ### the content of electronic communications pertains to the essence of the fundamental right to respect for private and family life , home and communications protected under article 7 of the charter . any processing of content data of electronic communications should be allowed only under very clear defined conditions , for specific purposes and be subject to adequate safeguards against abuse . this regulation provides for the possibility of providers of electronic communications services to process electronic communications data in transit , with the informed consent of all the users concerned . for example , providers may offer services that entail the scanning of emails to remove certain pre - defined material . given the sensitivity of electronic communications data , this regulation sets forth a presumption that the processing of such content data will result in high risks to the rights and freedoms of natural persons . when processing such type of data , the provider of the electronic communications service should always carry out an impact assessment as provided for in regulation 2016 / 679 and if necessary under that regulation , consult the supervisory authority prior to the processing . after electronic communications content has been sent by the user and received by the intended end - user or end - users , it may be recorded or stored by the end - user , end - users or by another party entrusted by them to record or store such data , which could be the electronic communications provider . any processing of such stored communications data where the data is stored on behalf of the end - user must comply with this regulation . the end - user may further process the data , and if it contains personal data , must comply with regulation 2016 / 679 .


### ‘ electronic communications metadata’ means data processed in an electronic communications network for the purposes of transmitting , distributing or exchanging electronic communications content ; including data used to trace and identify the source and destination of a communication , data on the location of the device generated in the context of providing electronic communications services , and the date , time , duration and the type of communication ; ### ' electronic communications metadata ' means all data processed for the purposes of transmitting , distributing or exchanging electronic communications content ; including data used to trace and identify the source and destination of a communication , electronic identifiers and any other data broadcasted or emitted by the terminal equipment , data on the location of the terminal equipment processed in the context of providing electronic communications services , and the date , time , duration and the type of communication ; where metadata of other electronic communications services or protocols are transmitted , distributed or exchanged by using the respective service , they shall be considered electronic communications content for the respective service ;


### without prejudice to any other administrative or judicial remedy , every end - user of electronic communications services shall have the same remedies provided for in articles 77 , 78 , and 79 of regulation 2016 / 679 . ### without prejudice to any other administrative or judicial remedy , every user and subscriber of electronic communications services and , where applicable , every body , organisation or association , shall have the same remedies provided for in articles 77 , 78 , 79 , and 80 of regulation 2016 / 679 .


### where a natural or legal person obtains electronic contact details for electronic mail from its customer , in the context of the sale of a product or a service , in accordance with regulation 2016 / 679 , that natural or legal person may use these electronic contact details for direct marketing of its own similar products or services only if customers are clearly and distinctly given the opportunity to object , free of charge and in an easy manner , to such use . the right to object shall be given at the time of collection and each time a message is sent . ### where a natural or legal person obtains electronic contact details for e - mail from its customer , in the context of the sale of a product or a service , in accordance with regulation 2016 / 679 , that natural or legal person may use these electronic contact details for direct marketing of its own products or services only if customers are clearly and distinctly given the opportunity to object , free of charge and in an easy manner , to such use . the customer shall be informed about the right to object and shall be given an easy way to exercise it at the time of collection and each time a message is sent .


### article 7 of the charter of fundamental rights of the european union protects the fundamental right of everyone to the respect for his or her private and family life , home and communications . respect for the privacy of one ' s communications is an essential dimension of this right . confidentiality of electronic communications ensures that information exchanged between parties and the external elements of such communication , including when the information has been sent , from where , to whom , is not to be revealed to anyone other than to the parties involved in a communication . the principle of confidentiality should apply to current and future means of communication , including calls , internet access , instant messaging applications , e - mail , internet phone calls and personal messaging provided through social media . ### article 7 of the charter of fundamental rights of the european union protects the fundamental right of everyone to the respect for his or her private and family life , home and communications . respect for the privacy of one ' s communications is an essential dimension of this right . confidentiality of electronic communications ensures that information exchanged between parties and the external elements of such communication , including information regarding when the information has been sent , from where , to whom , is not to be revealed to anyone other than to the communicating parties . the principle of confidentiality should apply to current and future means of communication , including calls , internet access , instant messaging applications , e - mail , internet phone calls and inter - personal messaging provided through social media . it should also apply when the confidentiality of electronic communications and the privacy of the physical environment converge , i . e . where terminal devices for electronic communication can also listen into their physical environment or use other input channels such as bluetooth signalling or movement sensors .


### it is necessary for billing , calculating interconnection payments , detecting or stopping fraudulent , or abusive use of , or subscription to , electronic communications services ; or ### it is strictly necessary for billing , calculating interconnection payments , detecting or stopping fraudulent use , or abusive use of electronic communications services ; or


### the services used for communications purposes , and the technical means of their delivery , have evolved considerably . end - users increasingly replace traditional voice telephony , text messages and electronic mail conveyance services in favour of functionally equivalent online services such as voice over ip , messaging services and web - based e - mail services . in order to ensure an effective and equal protection of end - users when using functionally equivalent services , this regulation uses the definition of electronic communications services set forth in the [ directive of the european parliament and of the council establishing the european electronic communications code24 ] . that definition encompasses not only internet access services and services consisting wholly or partly in the conveyance of signals but also interpersonal communications services , which may or may not be number - based , such as for example , voice over ip , messaging services and web - based e - mail services . the protection of confidentiality of communications is crucial also as regards interpersonal communications services that are ancillary to another service ; therefore , such type of services also having a communication functionality should be covered by this regulation . _________________ 24 commission proposal for a directive of the european parliament and of the council establishing the european electronic communications code ) . ### the services used for communications purposes , and the technical means of their delivery , have evolved considerably . users and subscribers increasingly replace traditional voice telephony , text messages and electronic mail conveyance services in favour of functionally equivalent online services such as voice over ip , messaging services and web - based e - mail services , also known as “over - the - top services” . this regulation aims at ensuring an effective and equal protection of users and subscribers when using functionally equivalent services , so as to ensure the confidentiality of their communication , irrespective of the technological medium chosen . . that definition encompasses not only internet access services and services consisting wholly or partly in the conveyance of signals but also interpersonal communications services , which may or may not be number - based , such as for example , voice over ip , messaging services and web - based e - mail services . the protection of confidentiality of communications is crucial also as regards interpersonal communications services that are ancillary to another service , such as internal messaging , newsfeeds , timelines and similar functions in online services where messages are exchanged with other users within or outside that service ; therefore , such type of services also having a communication functionality should be covered by this regulation .


### to block incoming calls from specific numbers or from anonymous sources ; ### to block incoming calls from specific numbers , or numbers having a specific code or prefix identifying the fact that the call is a marketing call referred to in article 16 , or from anonymous sources ;


### in the case of software which has already been installed on 25 may 2018 , the requirements under paragraphs 1 and 2 shall be complied with at the time of the first update of the software , but no later than 25 august 2018 . ### in the case of software which has already been installed on 25 may 2018 , the requirements under paragraphs 1 , 2 and 2a shall be complied with at the time of the first update of the software , but no later than 25 august 2018 .


### ‘ direct marketing voice - to - voice calls’ means live calls , which do not entail the use of automated calling systems and communication systems ; ### ' direct marketing voice - to - voice calls ' means live calls , which do not entail the use of automated calling systems and communication systems ; this shall not include calls and text messages linked to amber alert ;


### when the processing of electronic communications data by providers of electronic communications services falls within its scope , this regulation should provide for the possibility for the union or member states under specific conditions to restrict by law certain obligations and rights when such a restriction constitutes a necessary and proportionate measure in a democratic society to safeguard specific public interests , including national security , defence , public security and the prevention , investigation , detection or prosecution of criminal offences or the execution of criminal penalties , including the safeguarding against and the prevention of threats to public security and other important objectives of general public interest of the union or of a member state , in particular an important economic or financial interest of the union or of a member state , or a monitoring , inspection or regulatory function connected to the exercise of official authority for such interests . therefore , this regulation should not affect the ability of member states to carry out lawful interception of electronic communications or take other measures , if necessary and proportionate to safeguard the public interests mentioned above , in accordance with the charter of fundamental rights of the european union and the european convention for the protection of human rights and fundamental freedoms , as interpreted by the court of justice of the european union and of the european court of human rights . providers of electronic communications services should provide for appropriate procedures to facilitate legitimate requests of competent authorities , where relevant also taking into account the role of the representative designated pursuant to article 3 . ### when the processing of electronic communications data by providers of electronic communications services falls within its scope , this regulation is without prejudice to the possibility for the union or member states under specific conditions to restrict by law certain obligations and rights set out in this regulation when such a restriction is targeted at persons suspected of having committed a criminal offence and constitutes a necessary and proportionate measure in a democratic society to safeguard specific public interests , including national security , defence , public security and the prevention , investigation , detection or prosecution of criminal offences or the execution of criminal penalties , including the safeguarding against and the prevention of threats to public security . therefore , this regulation should not affect the ability of member states to carry out lawful interception of electronic communications or take other measures , if necessary and proportionate to safeguard the public interests mentioned above , in accordance with the charter of fundamental rights of the european union and the european convention for the protection of human rights and fundamental freedoms , as interpreted by the court of justice of the european union and of the european court of human rights .


### the prohibition of storage of communications is not intended to prohibit any automatic , intermediate and transient storage of this information insofar as this takes place for the sole purpose of carrying out the transmission in the electronic communications network . it should not prohibit either the processing of electronic communications data to ensure the security and continuity of the electronic communications services , including checking security threats such as the presence of malware or the processing of metadata to ensure the necessary quality of service requirements , such as latency , jitter etc . ### the prohibition of storage of communications during transmission is not intended to prohibit any automatic , intermediate and transient storage of this information insofar as this takes place for the sole purpose of carrying out the transmission . this regulation also should not prohibit either the processing of electronic communications data to ensure the security , confidentiality , integrity , availability , authenticity and continuity of the electronic communications services and networks , including checking security threats related to the respective service or the processing of metadata of the respective service to ensure the necessary quality of service requirements , such as latency , jitter etc .


### the content of electronic communications may reveal highly sensitive information about the natural persons involved in the communication , from personal experiences and emotions to medical conditions , sexual preferences and political views , the disclosure of which could result in personal and social harm , economic loss or embarrassment . similarly , metadata derived from electronic communications may also reveal very sensitive and personal information . these metadata includes the numbers called , the websites visited , geographical location , the time , date and duration when an individual made a call etc . , allowing precise conclusions to be drawn regarding the private lives of the persons involved in the electronic communication , such as their social relationships , their habits and activities of everyday life , their interests , tastes etc . ### electronic communications data may reveal highly sensitive information about the natural persons involved in the communication , from personal experiences and emotions to medical conditions , sexual preferences and political views , the disclosure of which could result in personal and social harm , economic loss or embarrassment . for the content of communications , the court of justice has clarified that access on a generalised basis by parties other than the communication partners and the communications service provider must be regarded as compromising the essence of the fundamental right to respect for private life , which is never acceptable . similarly , metadata derived from electronic communications may also reveal very sensitive and personal information . these metadata includes the numbers called , the websites visited , geographical location , the time , date and duration when an individual made a call etc . , allowing precise conclusions to be drawn regarding the private lives of the persons involved in the electronic communication , such as their social relationships , their habits and activities of everyday life , their interests , tastes etc . metadata can also be processed and analysed much easier than content , as it is already brought into a structured and standardised format . the protection of confidentiality of communications is an essential condition for the respect of other connected fundamental rights and freedoms , such as the protection of freedom of thought , conscience and religion , freedom of assembly , freedom of expression and information .


### the use of processing and storage capabilities of terminal equipment and the collection of information from end - users ' terminal equipment , including about its software and hardware , other than by the end - user concerned shall be prohibited , except on the following grounds : ### the use of input , output , processing and storage capabilities of terminal equipment and the processing of information from users ' terminal equipment , or making information available through the terminal equipment , including information about and processed by its software and hardware , other than by the user concerned shall be prohibited , except on the following grounds :


### where the processing of electronic communications metadata takes place for the purpose of billing in accordance with point of article 6 , the relevant metadata may be kept until the end of the period during which a bill may lawfully be challenged or a payment may be pursued in accordance with national law . ### where the processing of electronic communications metadata takes place for the purpose of billing in accordance with point of article 6 , only the metadata that is strictly necessary for this purpose may be kept at the request of the subscriber until the end of the period during which a bill may lawfully be challenged or a payment may be pursued in accordance with national law .


### exceptions to the obligation to obtain consent to make use of the processing and storage capabilities of terminal equipment or to access information stored in terminal equipment should be limited to situations that involve no , or only very limited , intrusion of privacy . for instance , consent should not be requested for authorizing the technical storage or access which is strictly necessary and proportionate for the legitimate purpose of enabling the use of a specific service explicitly requested by the end - user . this may include the storing of cookies for the duration of a single established session on a website to keep track of the end - user’s input when filling in online forms over several pages . cookies can also be a legitimate and useful tool , for example , in measuring web traffic to a website . information society providers that engage in configuration checking to provide the service in compliance with the end - user ' s settings and the mere logging of the fact that the end - user’s device is unable to receive content requested by the end - user should not constitute access to such a device or use of the device processing capabilities . ### exceptions to the obligation to obtain consent to make use of the processing and storage capabilities of terminal equipment or to access information stored in terminal equipment should be limited to situations that involve no , or only very limited , intrusion of privacy . for instance , consent should not be requested for authorizing the technical storage or access which is strictly necessary and proportionate for the legitimate purpose of enabling the use of a specific service explicitly requested by the user . this may include the storing of information for the duration of a single established session on a website to keep track of the user’s input when filling in online forms over several pages . tracking techniques , if implemented with appropriate privacy safeguards , can also be a legitimate and useful tool , for example , in measuring web traffic to a website . information society providers could engage in configuration checking in order to provide the service in compliance with the user ' s settings and the mere logging revealing the fact that the user’s device is unable to receive content requested by the user , should not constitute illegitimate access .


### ‘ direct marketing voice - to - voice calls’ means live calls , which do not entail the use of automated calling systems and communication systems ; ### ' direct marketing voice - to - voice calls ' means live calls , which do not entail the use of automated calling systems and communication systems , including calls made using automated calling and communication systems which connect the called person to an individual ;


### the development of fast and efficient wireless technologies has fostered the increasing availability for the public of internet access via wireless networks accessible by anyone in public and semi - private spaces such as ‘ hotspots’ situated at different places within a city , department stores , shopping malls and hospitals . to the extent that those communications networks are provided to an undefined group of end - users , the confidentiality of the communications transmitted through such networks should be protected . the fact that wireless electronic communications services may be ancillary to other services should not stand in the way of ensuring the protection of confidentiality of communications data and application of this regulation . therefore , this regulation should apply to electronic communications data using electronic communications services and public communications networks . in contrast , this regulation should not apply to closed groups of end - users such as corporate networks , access to which is limited to members of the corporation . ### the development of fast and efficient wireless technologies has fostered the increasing availability for the public of internet access via wireless networks accessible by anyone in public and semi - private spaces such as wireless internet access points situated at different places within a city , department stores , shopping malls , hospitals , airports , hotels and restaurants . those access points might require a login or provide a password and might be provided also by public administrations , including union bodies and agencies . to the extent that those communications networks are provided to users , the confidentiality of the communications transmitted through such networks should be protected . the fact that wireless electronic communications services may be ancillary to other services should not stand in the way of ensuring the protection of confidentiality of communications data and application of this regulation . therefore , this regulation should apply to electronic communications data using electronic communications services and public communications networks . this regulation should also apply to closed social media profiles and groups that the users have defined as private . in contrast , this regulation should not apply to closed groups of subscribers such as corporate networks , access to which is limited to members of an organisation .


### it is necessary for billing , calculating interconnection payments , detecting or stopping fraudulent , or abusive use of , or subscription to , electronic communications services ; or ### it is strictly necessary for billing , calculating interconnection payments , detecting or stopping fraudulent use of , or subscription to , electronic communications services ; or


### electronic communications data should be treated as confidential . this means that any interference with the transmission of electronic communications data , whether directly by human intervention or through the intermediation of automated processing by machines , without the consent of all the communicating parties should be prohibited . the prohibition of interception of communications data should apply during their conveyance , i . e . until receipt of the content of the electronic communication by the intended addressee . interception of electronic communications data may occur , for example , when someone other than the communicating parties , listens to calls , reads , scans or stores the content of electronic communications , or the associated metadata for purposes other than the exchange of communications . interception also occurs when third parties monitor websites visited , timing of the visits , interaction with others , etc . , without the consent of the end - user concerned . as technology evolves , the technical ways to engage in interception have also increased . such ways may range from the installation of equipment that gathers data from terminal equipment over targeted areas , such as the so - called imsi catchers , to programs and techniques that , for example , surreptitiously monitor browsing habits for the purpose of creating end - user profiles . other examples of interception include capturing payload data or content data from unencrypted wireless networks and routers , including browsing habits without the end - users ' consent . ### electronic communications should be treated as confidential . this means that any interference with the transmission of electronic communications , whether directly by human intervention or through the intermediation of automated processing by machines , without the consent of all the communicating parties should be prohibited . when the processing is allowed under any exception to the prohibitions under this regulation , any other processing on the basis of article 6 of regulation 2016 / 679 should be considered as prohibited , including processing for another purpose on the basis of article 6 of that regulation . this should not prevent requesting additional consent for new processing operations . the prohibition of interception of communications should apply also during their conveyance , i . e . until receipt of the content of the electronic communication by the intended addressee , and to any temporary files in the network after receipt . interception of electronic communications may occur , for example , when someone other than the communicating parties , listens to calls , reads , scans or stores the content of electronic communications , or the associated metadata for purposes other than the exchange of communications . interception also occurs when other parties monitor websites visited , timing of the visits , interaction with others , etc . , without the consent of the user concerned . as technology evolves , the technical ways to engage in interception have also increased . such ways may range from the installation of equipment that gathers data from terminal equipment over targeted areas , such as the so - called imsi catchers , to programs and techniques that , for example , surreptitiously monitor browsing habits for the purpose of creating user profiles . other examples of interception include capturing payload data or content data from unencrypted wireless networks and routers , and analysis of customers ' traffic data , including browsing habits without the users ' consent .


### for the sole purpose of the provision of a specific service to an end - user , if the end - user or end - users concerned have given their consent to the processing of his or her electronic communications content and the provision of that service cannot be fulfilled without the processing of such content ; or ### for the sole purpose of the provision of a specific service requested by the user , if the users concerned have given their specific consent to the processing of their electronic communications content and the provision of that specific service cannot be fulfilled without the processing of such content ; or


### software placed on the market permitting electronic communications , including the retrieval and presentation of information on the internet , shall offer the option to prevent third parties from storing information on the terminal equipment of an end - user or processing information already stored on that equipment . ### hardware and software placed on the market that enable the access to and use of electronic communications services or the access to and use of information society services shall be able to prevent other parties from using input , output , processing and storage capabilities of terminal equipment and the processing of information related to or processed by a users ' terminal equipment , or making information available through the terminal equipment , including information about and processed by its software and hardware .


### infringements of the principle of confidentiality of communications , permitted processing of electronic communications data , time limits for erasure pursuant to articles 5 , 6 , and 7 shall , in accordance with paragraph 1 of this article , be subject to administrative fines up to 20 000 000 eur , or in the case of an undertaking , up to 4 % of the total worldwide annual turnover of the preceding financial year , whichever is higher . ### infringements of the following provisions of this regulation shall , in accordance with paragraph 1 , be subject to administrative fines up to 20 000 000 eur , or in the case of an undertaking , up to 4 % of the total worldwide annual turnover of the preceding financial year , whichever is higher :


### terminal equipment of end - users of electronic communications networks and any information relating to the usage of such terminal equipment , whether in particular is stored in or emitted by such equipment , requested from or processed in order to enable it to connect to another device and or network equipment , are part of the private sphere of the end - users requiring protection under the charter of fundamental rights of the european union and the european convention for the protection of human rights and fundamental freedoms . given that such equipment contains or processes information that may reveal details of an individual’s emotional , political , social complexities , including the content of communications , pictures , the location of individuals by accessing the device’s gps capabilities , contact lists , and other information already stored in the device , the information related to such equipment requires enhanced privacy protection . furthermore , the so - called spyware , web bugs , hidden identifiers , tracking cookies and other similar unwanted tracking tools can enter end - user’s terminal equipment without their knowledge in order to gain access to information , to store hidden information and to trace the activities . information related to the end - user’s device may also be collected remotely for the purpose of identification and tracking , using techniques such as the so - called ‘ device fingerprinting’ , often without the knowledge of the end - user , and may seriously intrude upon the privacy of these end - users . techniques that surreptitiously monitor the actions of end - users , for example by tracking their activities online or the location of their terminal equipment , or subvert the operation of the end - users’ terminal equipment pose a serious threat to the privacy of end - users . therefore , any such interference with the end - user’s terminal equipment should be allowed only with the end - user’s consent and for specific and transparent purposes . ### terminal equipment of users of electronic communications networks and any information relating to the usage of such terminal equipment , whether in particular is stored in or emitted by such equipment , requested from or processed in order to enable it to connect to another device and or network equipment , are part of the private sphere of the users requiring protection under the charter of fundamental rights of the european union and the european convention for the protection of human rights and fundamental freedoms . given that such equipment contains or processes very sensitive data that may reveal details of the behaviour , psychological features , emotional condition and political convictions , religious beliefs and social complexities of an individual , including the content of communications , pictures , the location of individuals by accessing the device’s gps capabilities , contact lists , and other information already stored in the device , the information processed by or related to such equipment requires enhanced privacy protection . information related to the user’s device may also be collected remotely for the purpose of identification and tracking , using techniques such as the so - called ‘ device fingerprinting’ , often without the knowledge of the user , and may seriously intrude upon the privacy of these users . furthermore , the so - called spyware , web bugs , hidden identifiers , tracking cookies and other similar tracking tools can enter user’s terminal equipment without their knowledge in order to gain access to information , to store hidden information , to process data and use input and output functionalities such as sensors , and to trace the activities . techniques that surreptitiously monitor the actions of users , for example by tracking their activities online or the location of their terminal equipment , or subvert the operation of the users’ terminal equipment pose a serious threat to the privacy of users . therefore , any such interference with the user’s terminal equipment should be allowed only with the user’s consent and for specific and transparent purposes .


### the commission shall be assisted by the communications committee established under article 110 of the [ directive establishing the european electronic communications code ] . that committee shall be a committee within the meaning of regulation no 182 / 201129 . __________________ 29 regulation no 182 / 2011 of the european parliament and of the council of 16 february 2011 laying down the rules and general principles concerning mechanisms for control by member states of the commission’s exercise of implementing powers . ### the commission shall be assisted by the committee established under article 93 of the regulation 2016 / 679 . that committee shall be a committee within the meaning of regulation no 182 / 201129 . __________________ 29 regulation no 182 / 2011 of the european parliament and of the council of 16 february 2011 laying down the rules and general principles concerning mechanisms for control by member states of the commission’s exercise of implementing powers .


### accessing electronic communications networks requires the regular emission of certain data packets in order to discover or maintain a connection with the network or other devices on the network . furthermore , devices must have a unique address assigned in order to be identifiable on that network . wireless and cellular telephone standards similarly involve the emission of active signals containing unique identifiers such as a mac address , the imei , the imsi etc . a single wireless base station , such as a wireless access point , has a specific range within which such information may be captured . service providers have emerged who offer tracking services based on the scanning of equipment related information with diverse functionalities , including people counting , providing data on the number of people waiting in line , ascertaining the number of people in a specific area , etc . this information may be used for more intrusive purposes , such as to send commercial messages to end - users , for example when they enter stores , with personalized offers . while some of these functionalities do not entail high privacy risks , others do , for example , those involving the tracking of individuals over time , including repeated visits to specified locations . providers engaged in such practices should display prominent notices located on the edge of the area of coverage informing end - users prior to entering the defined area that the technology is in operation within a given perimeter , the purpose of the tracking , the person responsible for it and the existence of any measure the end - user of the terminal equipment can take to minimize or stop the collection . additional information should be provided where personal data are collected pursuant to article 13 of regulation 2016 / 679 . ### accessing electronic communications networks requires the regular emission of certain data packets in order to discover or maintain a connection with the network or other devices on the network . furthermore , devices must have a unique address assigned in order to be identifiable on that network . wireless and cellular telephone standards similarly involve the emission of active signals containing unique identifiers such as a mac address , the imei , the imsi etc . a single wireless base station , such as a wireless access point , has a specific range within which such electronic communications metadata may be captured . service providers have emerged who offer tracking services based on the scanning of equipment related information with diverse functionalities , including people counting , providing data on the number of people waiting in line , ascertaining the number of people in a specific area , etc . this information may be used for more intrusive purposes , such as to send commercial messages to users , for example when they enter stores , with personalized offers . while some of these functionalities do not entail high privacy risks , others do , for example , those involving the tracking of individuals over time , including repeated visits to specified locations . providers engaged in such practices should only be permitted to process such electronic communications metadata based on the consent of the users concerned .


### safeguards should be provided to protect end - users against unsolicited communications for direct marketing purposes , which intrude into the private life of end - users . the degree of privacy intrusion and nuisance is considered relatively similar independently of the wide range of technologies and channels used to conduct these electronic communications , whether using automated calling and communication systems , instant messaging applications , emails , sms , mms , bluetooth , etc . it is therefore justified to require that consent of the end - user is obtained before commercial electronic communications for direct marketing purposes are sent to end - users in order to effectively protect individuals against the intrusion into their private life as well as the legitimate interest of legal persons . legal certainty and the need to ensure that the rules protecting against unsolicited electronic communications remain future - proof justify the need to define a single set of rules that do not vary according to the technology used to convey these unsolicited communications , while at the same time guaranteeing an equivalent level of protection for all citizens throughout the union . however , it is reasonable to allow the use of e - mail contact details within the context of an existing customer relationship for the offering of similar products or services . such possibility should only apply to the same company that has obtained the electronic contact details in accordance with regulation 2016 / 679 . ### safeguards should be provided to protect subscribers against unsolicited communications , including for direct marketing purposes . the degree of privacy intrusion and nuisance is considered relatively similar independently of the wide range of technologies and channels used to conduct these electronic communications , whether using automated calling and communication systems , instant messaging applications , emails , sms , mms , bluetooth , etc . it is therefore justified to require that consent of the subscriber is obtained before commercial electronic communications for direct marketing purposes are sent to subscribers in order to effectively protect individuals against the intrusion into their private life as well as the legitimate interest of subscribers that are legal persons . legal certainty and the need to ensure that the rules protecting against unsolicited electronic communications remain future - proof justify the need to define a single set of rules that do not vary according to the technology used to convey these unsolicited communications , while at the same time guaranteeing an equivalent level of protection for all citizens throughout the union . however , it is reasonable to allow the use of e - mail contact details within the context of an existing customer relationship for the offering of similar products or services . such possibility should only apply to the same company that has obtained the electronic contact details in accordance with regulation 2016 / 679 .


### this regulation should apply to providers of electronic communications services , to providers of publicly available directories , and to software providers permitting electronic communications , including the retrieval and presentation of information on the internet . this regulation should also apply to natural and legal persons who use electronic communications services to send direct marketing commercial communications or collect information related to or stored in end - users’ terminal equipment . ### this regulation should apply to providers of electronic communications services , to providers of publicly available directories , and to software providers permitting electronic communications , including the retrieval and presentation of information on the internet . this regulation should also apply to natural and legal persons who use electronic communications services to send direct marketing , commercial communications or collect information related to , processed by or stored in end - users’ terminal equipment .


### when the processing of electronic communications data by providers of electronic communications services falls within its scope , this regulation should provide for the possibility for the union or member states under specific conditions to restrict by law certain obligations and rights when such a restriction constitutes a necessary and proportionate measure in a democratic society to safeguard specific public interests , including national security , defence , public security and the prevention , investigation , detection or prosecution of criminal offences or the execution of criminal penalties , including the safeguarding against and the prevention of threats to public security and other important objectives of general public interest of the union or of a member state , in particular an important economic or financial interest of the union or of a member state , or a monitoring , inspection or regulatory function connected to the exercise of official authority for such interests . therefore , this regulation should not affect the ability of member states to carry out lawful interception of electronic communications or take other measures , if necessary and proportionate to safeguard the public interests mentioned above , in accordance with the charter of fundamental rights of the european union and the european convention for the protection of human rights and fundamental freedoms , as interpreted by the court of justice of the european union and of the european court of human rights . providers of electronic communications services should provide for appropriate procedures to facilitate legitimate requests of competent authorities , where relevant also taking into account the role of the representative designated pursuant to article 3 . ### when the processing of electronic communications data by providers of electronic communications services falls within its scope , this regulation is without prejudice to the possibility for the union or member states under specific conditions to restrict by law certain obligations and rights set out in this regulation when such a restriction is targeted at persons suspected of having committed a criminal offence and constitutes a necessary and proportionate measure in a democratic society to safeguard specific public interests , including national security , defence , public security and the prevention , investigation , detection or prosecution of criminal offences or the execution of criminal penalties , including the safeguarding against and the prevention of threats to public security . therefore , this regulation should not affect the ability of member states to carry out lawful interception of electronic communications or take other measures , if necessary and proportionate to safeguard the public interests mentioned above , in accordance with the charter of fundamental rights of the european union and the european convention for the protection of human rights and fundamental freedoms , as interpreted by the court of justice of the european union and of the european court of human rights .


### the processing of electronic communications data can be useful for businesses , consumers and society as a whole . vis - à - vis directive 2002 / 58 / ec , this regulation broadens the possibilities for providers of electronic communications services to process electronic communications metadata , based on end - users consent . however , end - users attach great importance to the confidentiality of their communications , including their online activities , and that they want to control the use of electronic communications data for purposes other than conveying the communication . therefore , this regulation should require providers of electronic communications services to obtain end - users’ consent to process electronic communications metadata , which should include data on the location of the device generated for the purposes of granting and maintaining access and connection to the service . location data that is generated other than in the context of providing electronic communications services should not be considered as metadata . examples of commercial usages of electronic communications metadata by providers of electronic communications services may include the provision of heatmaps ; a graphical representation of data using colors to indicate the presence of individuals . to display the traffic movements in certain directions during a certain period of time , an identifier is necessary to link the positions of individuals at certain time intervals . this identifier would be missing if anonymous data were to be used and such movement could not be displayed . such usage of electronic communications metadata could , for example , benefit public authorities and public transport operators to define where to develop new infrastructure , based on the usage of and pressure on the existing structure . where a type of processing of electronic communications metadata , in particular using new technologies , and taking into account the nature , scope , context and purposes of the processing , is likely to result in a high risk to the rights and freedoms of natural persons , a data protection impact assessment and , as the case may be , a consultation of the supervisory authority should take place prior to the processing , in accordance with articles 35 and 36 of regulation 2016 / 679 . ### the processing of electronic communications data can be useful for businesses , consumers and society as a whole . examples of commercial usages of electronic communications metadata by providers of electronic communications services may include the provision of heatmaps ; a graphical representation of data using colors to indicate the presence of individuals . to display the traffic movements in certain directions during a certain period of time , an identifier may be necessary to link the positions of individuals at certain time intervals . such usage of electronic communications metadata could , for example , benefit public authorities and public transport operators to define where to develop new infrastructure , based on the usage of and pressure on the existing structure . where processing of electronic communications data is foreseen , a data protection impact assessment and , as the case may be , a consultation of the supervisory authority should take place prior to the processing , in accordance with articles 35 and 36 of regulation 2016 / 679 .


### the development of fast and efficient wireless technologies has fostered the increasing availability for the public of internet access via wireless networks accessible by anyone in public and semi - private spaces such as ‘ hotspots’ situated at different places within a city , department stores , shopping malls and hospitals . to the extent that those communications networks are provided to an undefined group of end - users , the confidentiality of the communications transmitted through such networks should be protected . the fact that wireless electronic communications services may be ancillary to other services should not stand in the way of ensuring the protection of confidentiality of communications data and application of this regulation . therefore , this regulation should apply to electronic communications data using electronic communications services and public communications networks . in contrast , this regulation should not apply to closed groups of end - users such as corporate networks , access to which is limited to members of the corporation . ### the development of fast and efficient wireless technologies has fostered the increasing availability for the public of internet access via wireless networks accessible by anyone in public and semi - private spaces such as wireless internet access points . the confidentiality of the communications transmitted through such networks should be protected . the fact that wireless electronic communications services may be ancillary to other services should not stand in the way of ensuring the protection of confidentiality of communications data and application of this regulation . therefore , this regulation should apply to electronic communications data using electronic communications services and public communications networks . this regulation should also apply to closed social media profiles and groups that the users have defined as private . in contrast , this regulation should not apply to closed groups of users such as corporate networks , access to which is limited to members of an organisation .


### without prejudice to point of article 6 and points and of article 6 , the provider of the electronic communications service shall erase electronic communications content or make that data anonymous after receipt of electronic communication content by the intended recipient or recipients . such data may be recorded or stored by the end - users or by a third party entrusted by them to record , store or otherwise process such data , in accordance with regulation 2016 / 679 . ### without prejudice to points and of article 6 , the provider of the electronic communications service shall erase electronic communications content after receipt by the intended recipient or recipients . such data may be recorded or stored by the end - users or by a party , which could be the provider of the electronic communication service , specifically entrusted by the subscriber to record , store or otherwise process such data . the subscriber may further process the data in accordance with regulation 2016 / 679 , if applicable .


### article 7 of the charter of fundamental rights of the european union protects the fundamental right of everyone to the respect for his or her private and family life , home and communications . respect for the privacy of one ' s communications is an essential dimension of this right . confidentiality of electronic communications ensures that information exchanged between parties and the external elements of such communication , including when the information has been sent , from where , to whom , is not to be revealed to anyone other than to the parties involved in a communication . the principle of confidentiality should apply to current and future means of communication , including calls , internet access , instant messaging applications , e - mail , internet phone calls and personal messaging provided through social media . ### article 7 of the charter of fundamental rights of the european union protects the fundamental right of everyone to the respect for his or her private and family life , home and communications . respect for the privacy of one ' s communications is an essential dimension of this right . confidentiality of electronic communications ensures that information exchanged between parties and the external elements of such communications , including information regarding when the information has been sent , from where , to whom , is not to be revealed to anyone other than to the communication parties . the principle of confidentiality should apply to current and future means of communication , including calls , internet access , instant messaging applications , in - platform messages between users of a social network , e - mail , internet phone calls and personal messaging provided through social media .