Opinion of the Economic and Social Committee on the "proposal for a Directive of the European Parliament and of the Council concerning the processing of personal data and the protection of privacy in the electronic communication sector"
Date: 2001-01-24
Institutions: European Economic and Social Committee
Subjects: communications policy, electronic equipment, electronic mail, personal data, protection of privacy

25.4.2001

EN

Official Journal of the European Communities

C 123/53

Opinion of the Economic and Social Committee on the ‘proposal for a Directive of the European
Parliament and of the Council concerning the processing of personal data and the protection of
privacy in the electronic communication sector’

(2001/C 123/11)

On 25 October 2000 the Council decided to consult the Economic and Social Committee, under
Article 95 of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for Transport, Energy, Infrastructure and the Information Society, which was responsible for
preparing the Committee’s work on the subject, adopted its opinion on 7 December 2000. The rapporteur
was Mr Lagerholm.

At its 378th plenary session on 24 and 25 January 2001 (meeting of 24 January) the Economic and
Social Committee adopted the following opinion with 76 votes in favour and two abstentions.

1.

The Commission’s Proposal

1.1.
The proposed directive is part of a new regulatory
framework for all transfer networks and services, designed to
secure the competitiveness of the electronic communications
market. On the basis of the proposed directive on a common
regulatory framework for electronic communications net-
works and services (1) the present proposal
is intended to
replace Directive 97/66/EC (2), concerning the processing of
personal data and the protection of privacy in the telecom-
munications sector; it would also particularise and supplement
it. The directive must be adapted to developments in the
markets and technology, to provide users of publicly accessible
electronic communications services with the same level of
protection of personal data and privacy regardless of the
technology used.

1.4.
Subscribers have the right to require non-itemised bills.
Calling users must have the possibility of preventing the
presentation of the calling-line identification, while the called
subscriber must have the possibility of rejecting incoming calls
where the presentation of the calling line identification has
been prevented. Exceptions are provided for in the case of
emergency calls and, on request, in the case of malicious or
nuisance calls.

1.5.
Any subscriber should have the possibility of stopping
automatic call forwarding by a third party to the subscriber’s
terminal. He should have the opportunity to determine
whether his personal data are included in public directories,
and if so which personal data. The use of automated calling
systems (voice mail systems) and unsolicited communications
for purposes of direct marketing is permitted only with the
agreement of the subscriber.

1.2.
Specific legal and technical provisions to protect
fundamental rights and freedoms are particularly necessary in
view of the increasing capacity for automated storage and
processing of data of a personal nature. The provisions adopted
by Member States should be harmonised in order to avoid
obstacles to the internal market.

1.6. Member States are to ensure that no mandatory
requirements for specific technical features are imposed on
terminal or other electronic communications equipment.
Where required, the Commission is to adopt measures to
ensure that terminal equipment incorporates the necessary
safeguards.

1.3. While the providers of publicly available electronic
communications services must take appropriate measures to
safeguard the security of their services, it is up to Member
States to ensure the confidentiality of communications. In
particular, they should prohibit listening, tapping and storage
of communications. Traffic and location data may only be
processed when they are made anonymous or with the consent
of the users.

1.7. Member States may restrict
the scope of certain
provisions to safeguard national security, defence, public
security and in connection with criminal offences. The working
party on data protection set up under Article 29 or Directive
95/46/EC (3) carries out the tasks laid down in that directive
with regard to the protection of
fundamental rights and
freedoms and of legitimate interests.

(1) COM(2000) 393 final.
(2) European Parliament and Council Directive of 15 December

1997, OJ L 24, 30.1.1998.

(3) European Parliament and Council Directive of 24 October 1995
on the protection of individuals with regard to the processing of
personal data and on free movement of such data, OJ L 281,
23.11.1995.

C 123/54

EN

Official Journal of the European Communities

25.4.2001

2. Comments

2.1. Maintaining user control over personal data is a
prerequisite for successful electronic communications. How-
ever, much of such control relates more to horizontal privacy
legislation and not to sector specific measures. Even if privacy
is perceived as more crucial and urgent in the telecommuni-
cations sector, the Committee believes that the same privacy
issues should be regulated in the same way, regardless of
whether electronic communications or ‘traditional’ handling
are involved.

2.2.
The proposed Data Protection Directive (DPD) should
therefore concentrate on the electronic communications-
specific issues. There is concern that the present horizontal
data protection directive 95/46/EC and the existing directive
on data protection in the telecom sector 97/66/EC are still
neither fully nor reciprocally implemented in a consistent
manner. The recently adopted Directive on electronic com-
merce 2000/31/EC(1) and the Directive on electronic signa-
tures 1999/93/EC (2) also contain provisions regarding privacy
in communications. Arguably, certain aspects of the reasons
and rationale in the former seem, at any rate, to contradict the
DPD as currently proposed. The DPD must therefore be clearly
focused on sector-specific issues so as to avoid the risk of
conflict with the foreseen revision of the horizontal directive
95/46/EC in 2001.

(1) OJ L 178, 17.7.2000.
(2) OJ L 13, 19.1.2000.

Brussels, 24 January 2001.

2.3.
The DPD changes to the current directive are described
as limited. That may be the case but the new definitions
could be considerably more far-reaching. Pending a revised
horizontal directive next year a reasonable objective for the
DPD could be solely to update the current directive to keep
pace with technical progress, without broadening its scope
beyond what is necessary for communications per se.

2.4.
An example of the adjustment required is given in the
proposed Directive on universal service (USD). The proposal
in the USD that the processing of very precise location data
should be mandatory for mobile 112 calls raises a privacy
issue, apart from cost and technology considerations. Any
system that provides for shared control of location details with
the end-user reduces security against intrusion. Although in
certain circumstances there is clearly an advantage in being
able to trace 112 calls, it would perhaps be reasonable to ask
whether end-users should be consulted before deciding on
such a major step.

2.5.
The proposal that e-mail should be included under a
system which only allows advertising communications to be
sent to subscribers who have given their prior consent to
receiving unsolicited messages raises some serious questions.

2.6.
The ESC supports the proposal for such an opt-in
system for commercial e-mail. In the Committee’s view, an
opt-in system has one serious drawback in that it could well
hinder the development of e-commerce and in such a way as
to discriminate against companies in the EU. Commercial
communications are a prerequisite for many of the services on
the Internet. The Committee feels, however, that the customer’s
interest in being spared unsolicited commercial information
must take precedence. An opt-in system of this type already
operates in several Member States.

The President

of the Economic and Social Committee

Göke FRERICHS