Common Position (EC) No 26/2002 of 28 January 2002 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a Directive of the European Parliament and of the Council concerning the processing of personal data and the protection of privacy in the electronic communications sector
Date: 2002-01-28
Institutions: Council of the European Union
Subjects: Internet, confidentiality, information processing, information society, protection of communications, protection of privacy, telecommunications

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Official Journal of the European Communities

C 113 E/39

COMMON POSITION (EC) No 26/2002

adopted by the Council on 28 January 2002

with a view to adopting Directive 2002/. . ./EC of the European Parliament and of the Council of
. . . concerning the processing of personal data and the protection of privacy in the electronic
communications sector

(2002/C 113 E/03)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF
THE EUROPEAN UNION,

the Protection of Human Rights
Freedoms, and the constitutions of the Member States.

and Fundamental

Having regard to the Treaty establishing the European
Community, and in particular Article 95 thereof,

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the Economic and Social
Committee (2),

Having consulted the Committee of the Regions,

Acting in accordance with the procedure laid down in Article
251 of the Treaty (3),

Whereas:

(1) Directive 95/46/EC of the European Parliament and of the
Council of 24 October 1995 on the protection of indi-
viduals with regard to the processing of personal data and
on the free movement of such data (4) requires Member
States to ensure the rights and freedoms of natural
persons with regard to the processing of personal data,
and in particular their right to privacy, in order to ensure
the free flow of personal data in the Community.

(2) This Directive seeks to respect the fundamental rights and
observes the principles recognised in particular by the
Charter of Fundamental Rights of the European Union.
In particular, this Directive seeks to ensure full respect
for the rights set out in Articles 7 and 8 of that Charter.

(3) Confidentiality of

is guaranteed in
communications
accordance with the international instruments relating to
human rights, in particular the European Convention for

(1) OJ C 365 E, 19.12.2000, p. 223.
(2) OJ C 123, 25.4.2001, p. 53.
(3) Opinion of

the European Parliament of 13 November 2001,
Council Common Position of 28 January 2002 and Decision of
the European Parliament of . . . (not yet published in the Official
Journal).

sector (5)

(4) Directive 97/66/EC of the European Parliament and of the
Council of 15 December 1997 concerning the processing
of personal data and the protection of privacy in the
telecommunications
translated the principles
set out in Directive 95/46/EC into specific rules for the
telecommunications sector. Directive 97/66/EC has to be
adapted to developments in the markets and technologies
for
to
electronic
services
level of protection of personal data
provide an equal
and privacy for users of publicly available electronic
communications services, regardless of the technologies
used. That Directive should therefore be repealed and
replaced by this Directive.

communications

in order

(5) New advanced digital

technologies are currently being
introduced in public communications networks in the
Community, which give rise to specific requirements
concerning the protection of personal data and privacy
of the user. The development of the information society
is characterised by the introduction of new electronic
to digital mobile
communications
networks has become available and affordable for a
large public. These digital networks have large capacities
and possibilities
for processing personal data. The
successful cross-border development of these services is
partly dependent on the confidence of users that their
privacy will not be at risk.

services. Access

(6) The Internet is overturning traditional market structures
by providing a common, global
infrastructure for the
delivery of a wide range of electronic communications
services. Publicly available electronic communications
the Internet open new possibilities for
services over
users but also new risks for their personal data and
privacy.

(7) In the case of public communications networks, specific
legal, regulatory, and technical provisions should be made
in order to protect fundamental rights and freedoms of
natural persons and legitimate interests of legal persons,
in particular with regard to the increasing capacity for
automated storage and processing of data relating to
subscribers and users.

(4) OJ L 281, 23.11.1995, p. 31.

(5) OJ L 24, 30.1.1998, p. 1.

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(8) Legal, regulatory, and technical provisions adopted by the
Member States concerning the protection of personal data,
privacy and the legitimate interest of legal persons, in the
electronic communication sector, should be harmonised
in order to avoid obstacles to the internal market for
electronic communication in accordance with Article 14
of
the Treaty. Harmonisation should be limited to
requirements necessary to guarantee that the promotion
and development of new electronic communications
services and networks between Member States are not
hindered.

Directive 95/46/EC to the protection of the legitimate
interests of legal persons, which is ensured within the
framework of
the applicable Community and national
legislation.

(13) The contractual

relation between a subscriber and a
service provider may entail a periodic or a one-off
for the service provided or to be provided.
payment
Prepaid cards are also considered as a contract.

(9) The Member States, providers and users concerned,
together with the competent Community bodies, should
cooperate in introducing and developing the relevant
technologies where this is necessary to apply the guar-
antees provided for by this Directive and taking particular
account of the objectives of minimising the processing of
personal data and of using anonymous or pseudonymous
data where possible.

(10) In the

electronic

sector, Directive
communications
95/46/EC applies in particular to all matters concerning
protection of fundamental rights and freedoms, which are
not specifically covered by the provisions of this Directive,
including the obligations on the controller and the rights
of individuals. Directive 95/46/EC applies to non-public
communications services.

to activities which are not

(11) Like Directive 95/46/EC, this Directive does not address
issues of protection of fundamental rights and freedoms
related
governed by
Community law. Therefore it does not alter the existing
balance between the individual's right to privacy and the
possibility for Member States to take such measures, as
are referred to in Article 15(1) of this Directive, necessary
for
the protection of public security, defence, State
security (including the economic well-being of the State
when the activities relate to State security matters) and the
enforcement of criminal law. Consequently, this Directive
does not affect the ability of Member States to carry out
lawful interception of electronic communications or take
other measures, if necessary for any of these purposes and
in accordance with the European Convention of Human
Rights and Fundamental Freedoms. Such measures must
be appropriate, strictly proportionate to the intended
purpose and necessary within a democratic society.

(12) Subscribers to a publicly available electronic communi-
cations service may be natural or legal persons. By supple-
menting Directive 95/46/EC, this Directive is aimed at
protecting the fundamental rights of natural persons and
particularly their right to privacy, as well as the legitimate
interests of legal persons. This Directive does not entail an
obligation for Member States to extend the application of

terminal

(14) Location data may refer to the latitude,
the user's
travel,

longitude and
to the
altitude of
the
direction of
location information,
the
to the
network cell in which the terminal equipment is located
at a certain point in time and to the time the location
information was recorded.

to the level of accuracy of
identification of

equipment,

(15) A communication may include any naming, numbering
or addressing information provided by the sender of a
communication or the user of a connection to carry out
the communication. Traffic data may include any trans-
lation of this information by the network over which the
communication is transmitted for the purpose of carrying
out the transmission. Traffic data may, inter alia, consist of
data referring to the routing, duration, time or volume of
a communication, to the protocol used, to the location of
the terminal equipment of the sender or recipient, to the
network on which the communication originates or
to the beginning, end or duration of a
terminates,
connection. They may also consist of
in
which the communication is conveyed by the network.

the format

(16) Information that is part of a broadcasting service provided
over a public communications network is intended for a
potentially unlimited audience and does not constitute a
communication in the sense of this Directive. However, in
cases where the individual subscriber or user receiving
such information can be identified,
for example with
the information conveyed is
video-on-demand services,
covered within the meaning of a communication for the
purposes of this Directive.

(17) For the purposes of this Directive, consent of a user or
subscriber, regardless of whether the latter is a natural or
a legal person, should have the same meaning as the data
specified in
subject's consent as defined and further
Directive 95/46/EC. Consent may be given by any appro-
priate method enabling a freely given specific and
informed indication of the user's wishes,
including by
ticking a box when visiting an Internet website.

(18) Value added services may, for example, consist of advice
on least expensive tariff packages, route guidance, traffic
information, weather forecasts and tourist information.

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to

and

automatic

(19) The application of certain requirements relating to pres-
entation and restriction of calling- and connected-line
identification
to
subscriber lines connected to analogue exchanges should
not be made mandatory in specific cases where such
application would prove to be technically impossible or
would require a disproportionate economic effort. It is
important for interested parties to be informed of such
cases and the Member States should therefore notify them
to the Commission.

call-forwarding

It

(20) Service providers should take appropriate measures to
if necessary in
safeguard the security of their services,
conjunction with the provider of
the network, and
inform subscribers of any special risks of a breach of
the security of the network. Such risks may especially
occur for electronic communications services over an
open network such as the Internet or analogue mobile
telephony.
for subscribers
is particularly important
and users of such services to be fully informed by their
service provider of the existing security risks which lie
outside the scope of possible remedies by the service
provider. Service providers who offer publicly available
electronic communications
the Internet
should inform users and subscribers of measures they
can take to protect the security of their communications
software or
for
to inform
encryption technologies. The
subscribers
not
does
of
discharge a service provider from the obligation to take,
at his own costs, appropriate and immediate measures to
remedy any new, unforeseen security risks and restore the
normal security level of the service. The provision of
information about security risks to the subscriber should
be free of charge except for any nominal costs which the
subscriber may incur while receiving or collecting the
information, for instance by downloading an electronic
mail message. Security is appraised in the light of
Article 17 of Directive 95/46/EC.

instance by using specific types of
requirement
risks

services over

particular

security

the onward transmission of

any publicly
efficient
accessible information to other recipients of the service
at their request, this Directive should not prevent such
information from being further stored, provided that
this information would in any case be accessible to the
public without restriction and that any data referring to
the
requesting such
subscribers or users
information are erased.

individual

(23) Confidentiality of communications should also be ensured
in the course of lawful business practice. Where necessary
and legally authorised, communications can be recorded
for the purpose of providing evidence of a commercial
transaction. Directive
such
processing. Parties to the communications should be
informed prior to the recording about the recording, its
purpose and the duration of its storage. The recorded
communication should be erased as soon as possible
and in any case at the latest by the end of the period
during which the transaction can be lawfully challenged.

95/46/EC

applies

to

(24) Terminal equipment of users of electronic communi-
cations networks and any information stored on such
equipment are part of the private sphere of the users
requiring protection under the European Convention for
and Fundamental
the Protection of Human Rights
‘hidden identifiers’ and
Freedoms.
other
terminal
to gain access to
without
information, to store hidden information or to trace the
activities of the user and may seriously intrude the privacy
of these users. The use of such devices should be allowed
only for legitimate purposes, with the knowledge of the
users concerned.

‘Spyware’,
similar devices

their knowledge in order

‘web bugs’,

the user's

can enter

(21) Measures should be taken to prevent unauthorised access
to communications in order to protect the confidentiality
of communications, including both the contents and any
data related to such communications, by means of public
communications networks and publicly available elec-
tronic communications services. National
legislation in
some Member States only prohibits intentional unauth-
orised access to communications.

(22) The prohibition of storage of communications and the
related traffic data by others than the users or without
their consent is not intended to prohibit any automatic,
intermediate and transient storage of this information in
so far as this takes place for the sole purpose of carrying
out the transmission in the electronic communications
network and provided that the information is not stored
for any period longer than is necessary for the trans-
mission and for traffic management purposes, and that
during the period of storage the confidentiality remains
guaranteed. Where this is necessary for making more

information about

(25) However, such devices, for instance ‘cookies’, can be a
legitimate and useful tool, for example, in analysing the
effectiveness of website design and advertising, and in
verifying the identity of users engaged in online trans-
actions. Where such devices,
for instance cookies, are
intended for a legitimate purpose, such as to facilitate
the provision of information society services, their use
should be allowed on condition that clear and precise
prior
the purposes of cookies or
similar devices is provided by the operator of a website
sending such devices or allowing third parties to send
them via his website. The website operator should also
give users at least the opportunity to refuse to have a
cookie or
terminal
equipment. Information and the right to refuse may be
offered once for the use of various devices to be installed
on the user's
terminal equipment during the same
connection and also covering any further use that may
be made of those devices during subsequent connections.
The methods for giving information, offering a right to
refuse or requesting consent should be made as user
friendly as possible. Access to specific website content
may still be made conditional on the well-informed
acceptance of a cookie or similar device, if it is used for
a legitimate purpose.

stored on their

similar device

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the purpose of billing and for

(26) The data relating to subscribers processed within elec-
tronic communications networks to establish connections
and to transmit information contain information on the
private life of natural persons and concern the right to
respect for their correspondence or concern the legitimate
interests of legal persons. Such data may only be stored to
the extent that is necessary for the provision of the service
for
interconnection
payments, and for a limited time. Any further processing
of such data which the provider of the publicly available
electronic communications services may want to perform
for the marketing of electronic communications services
or for the provision of value added services, may only be
allowed if the subscriber has agreed to this on the basis of
accurate and full information given by the provider of the
services
publicly available
about
to
perform and about the subscriber's right not to give or
to withdraw his consent to such processing. Traffic data
used for marketing communications services or for the
provision of value added services should also be erased
or made anonymous after the provision of the service.
Service
subscribers
informed of the types of data they are processing and
the purposes and duration for which this is done.

further processing it

communications

the types of

electronic

providers

intends

should

always

keep

electronic

(27) The exact moment of the completion of the transmission
of a communication, after which traffic data should be
erased except for billing purposes, may depend on the
type of
is
provided. For instance for a voice telephony call the trans-
mission will be completed as soon as either of the users
terminates the connection. For electronic mail, the trans-
mission is completed as soon as the addressee collects the
message, typically from the server of his service provider.

communications

service

that

(28) The obligation to erase traffic data or to make such data
anonymous when it is no longer needed for the purpose
of the transmission of a communication does not conflict
with such procedures on the Internet as the caching in the
domain name system of IP-addresses or the caching of
IP-addresses to physical address bindings or the use of
the right of access to
log in information to control
networks or services.

(29) The service provider may process traffic data relating to
subscribers and users where necessary in individual cases
in order to detect technical failure or errors in the trans-
mission of communications. Traffic data necessary for
billing purposes may also be processed by the provider
in order to detect and stop fraud consisting of unpaid use
of the electronic communications service.

(30) Systems for the provision of electronic communications
networks and services should be designed to limit the
amount of personal data necessary to a strict minimum.
Any activities related to the provision of the electronic
communications service that go beyond the transmission
of a communication and the billing thereof should be
based on aggregated, traffic data that cannot be related
to subscribers or users. Where such activities cannot be
based on aggregated data, they should be considered as
the
value added services
subscriber is required.

for which the consent of

(31) Whether the consent to be obtained for the processing of
personal data with a view to providing a particular value
the
added service should be that of
subscriber, will depend on the data to be processed and
on the type of service to be provided and on whether it is
technically, procedurally and contractually possible to
distinguish the individual using an electronic communi-
cations service from the legal or natural person having
subscribed to it.

the user or of

(32) Where the provider of an electronic communications
service or of a value added service subcontracts the
processing of personal data necessary for the provision
of these services to another entity, such subcontracting
and subsequent data processing should be
in full
compliance with the requirements regarding controllers
and processors of personal data as set out in Directive
95/46/EC. Where the provision of a value added service
requires that traffic or location data are forwarded from
an electronic communications
to a
the subscribers or
provider of value added services,
users to whom the data are related should also be fully
informed of this forwarding before giving their consent
for the processing of the data.

service provider

(33) The introduction of itemised bills has improved the possi-
bilities for the subscriber to check the accuracy of the fees
charged by the service provider but, at the same time, it
may jeopardise the privacy of
the users of publicly
available electronic communications services. Therefore,
in order to preserve the privacy of the user, Member
States should encourage the development of electronic
communication service options
alternative
payment
facilities which allow anonymous or strictly
private access to publicly available electronic communi-
cations services, for example calling cards and facilities for
payment by credit card. To the same end, Member States
may ask the operators to offer their subscribers a different
type of detailed bill in which a certain number of digits of
the called number have been deleted.

such as

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(34) It is necessary, as regards calling-line identification,

to
protect the right of the calling party to withhold the
presentation of the identification of the line from which
the call is being made and the right of the called party to
reject calls from unidentified lines. There is justification
for overriding the elimination of calling-line identification
presentation in specific cases. Certain subscribers,
in
particular helplines and similar organisations, have an
interest in guaranteeing the anonymity of their callers. It
is necessary, as regards connected-line identification, to
protect the right and the legitimate interest of the called
party to withhold the presentation of the identification of
the line to which the calling party is actually connected,
in particular in the case of forwarded calls. The providers
of publicly available electronic communications services
should inform their
the existence of
calling- and connected-line identification in the network
and of all services which are offered on the basis of
calling- and connected-line identification as well as the
privacy options which are available. This will allow the
subscribers to make an informed choice about the privacy
facilities they may want to use. The privacy options which
are offered on a per-line basis do not necessarily have to
be available as an automatic network service but may be
obtainable through a simple request to the provider of the
publicly available electronic communications service.

subscribers of

the terminal equipment of

location data giving the
(35) In digital mobile networks,
geographic position of
the
mobile user are processed to enable the transmission of
communications. Such data are traffic data covered by
in addition, digital
Article 6 of this Directive. However,
mobile networks may have the capacity to process
location data which are more precise than is necessary
for the transmission of communications and which are
used for the provision of value added services such as
services providing individualised traffic information and
guidance to drivers. The processing of such data for
value added services
should only be allowed where
subscribers have given their consent. Even in cases
where subscribers have given their consent, they should
have a simple means to temporarily deny the processing
of location data, free of charge.

(36) Member States may restrict

the users' and subscribers'
rights to privacy with regard to calling-line identification
where this is necessary to trace nuisance calls and with
regard to calling-line identification and location data
where this is necessary to allow emergency services to
carry out their tasks as effectively as possible. For these
purposes, Member States may adopt specific provisions to
entitle providers of electronic communications services to
provide access to calling-line identification and location
data without the prior consent of the users or subscribers
concerned.

(37) Safeguards should be provided for subscribers against the
call
nuisance which may be
forwarding by others. Moreover,
it must
be possible for subscribers to stop the forwarded calls
being passed on to their terminals by simple request to
the provider of the publicly available electronic communi-
cations service.

caused by automatic
in such cases,

are

that

able

require

subscribers

(38) Directories of subscribers to electronic communications
services are widely distributed and public. The right to
privacy of natural persons and the legitimate interest of
legal persons
to
determine whether their personal data are published in
a directory and if so, which. Providers of public directories
should inform the subscribers to be included in such
directories of the purposes of the directory and of any
particular usage which may be made of electronic
versions of public directories especially through search
functions embedded in the software, such as reverse
search functions enabling users of
the directory to
discover the name and address of the subscriber on the
basis of a telephone number only.

this possibility and of

(39) The obligation to inform subscribers of the purpose(s) of
public directories in which their personal data are to be
included should be imposed on the party collecting the
data for such inclusion. Where the data may be trans-
the subscriber
mitted to one or more third parties,
should be informed of
the
recipient or the categories of possible recipients. Any
transmission should be subject to the condition that the
data may not be used for other purposes than those for
which they were collected. If the party collecting the data
from the subscriber or any third party to whom the data
have been transmitted wishes to use the data for an
additional purpose, the renewed consent of the subscriber
is to be obtained either by the initial party collecting the
data or by the third party to whom the data have been
transmitted.

(40) Safeguards should be provided for subscribers against
intrusion of their privacy by unsolicited communications
for direct marketing purposes in particular by means of
automated calling machines, faxes, and e-mails, including
SMS messages. These forms of unsolicited commercial
communications may on the one hand be relatively easy
and cheap to send and on the other may impose a burden
and/or cost on the recipient. Moreover,
in some cases
their volume may also cause difficulties for electronic
communications networks and terminal equipment. For
such forms of unsolicited communications for direct
is justified to require that prior explicit
marketing,
such
consent of
is obtained before
the
communications are addressed to them. The
single
market
a harmonised approach to ensure
simple, Community-wide rules for businesses and users.

recipients

requires

it

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(41) However, within the context of an existing customer
relationship, it is reasonable to allow the use of electronic
contact details for the offering of similar products or
services as those originally purchased by the customer,
but only by the same company that has obtained the
contact details directly
customer. When
contact details are obtained,
the customer should be
informed about their further use for direct marketing in
a clear manner, and be given the opportunity to refuse
such usage. This opportunity should continue to be
offered with each subsequent direct marketing message,
free of charge, except for any costs for the transmission of
this refusal.

from the

justify

the maintenance of

(42) Other forms of direct marketing that are more costly for
the sender and impose no financial costs on subscribers
and users, such as person-to-person voice telephony calls,
may
system giving
subscribers or users the possibility to indicate that they
do not want to receive such calls. Nevertheless, in order
to decrease existing levels of privacy protection,
not
Member States should be entitled to uphold national
systems, only allowing such calls to subscribers and
users who have given their prior consent.

a

(43) To facilitate effective enforcement of Community rules on
unsolicited messages for direct marketing, it is necessary
false identities or false return
to prohibit
addresses
unsolicited
messages for direct marketing purposes.

the use of
or

numbers while

sending

(44) Direct marketing activities carried out by political, charity
or other organisations,
for instance activities aimed at
fund-raising or lobbying for
recruiting new members,
votes, are included in the concept of direct marketing as
established by Directive 95/46/EC. Messages by political
organisations or others for purposes other than direct
marketing,
views,
thoughts and ideas, are not covered by the provisions
on unsolicited communications of this Directive.

expression of

example

the

for

(45) This Directive is without prejudice to the arrangements
the legitimate
which Member States make to protect
interests of
legal persons with regard to unsolicited
communications for direct marketing purposes. Where
Member States establish an opt-out register
for such
communications to legal persons, mostly business users,
the provisions of Article 7 of Directive 2000/31/EC of the
European Parliament and of the Council of 8 June 2000
on certain legal aspects of information society services, in
particular electronic commerce,
in the internal market
(Directive on electronic commerce) (1) are fully applicable.

(46) The

of

for

the

the

rules

functionalities

configuration of

services may be

the provision of

existence of
services

specific
alongside general

electronic
communications
integrated in the
network or in any part of the terminal equipment of
the user,
including the software. The protection of the
personal data and the privacy of the user of publicly
available electronic communications services should be
independent
various
components necessary to provide the service and of the
distribution of the necessary functionalities between these
components. Directive 95/46/EC covers any form of
processing of personal data regardless of the technology
for electronic
used. The
communications
for
rules
other components necessary for the provision of such
facilitate the protection of personal
services may not
data and privacy in a technology neutral way.
It may
therefore be necessary to adopt measures requiring manu-
facturers of certain types of equipment used for electronic
in
communications services to construct their product
such a way as to incorporate safeguards to ensure that
the personal data and privacy of the user and subscriber
are protected. The
in
adoption of
accordance with Directive 1999/5/EC of the European
the Council of 9 March 1999 on
Parliament and of
terminal
radio
and
equipment
equipment
their
of
the mutual
conformity (2) will
introduction of
ensure
features
technical
communication
of
protection
software
including
equipment
purposes is harmonised in order to be compatible with
the implementation of the internal market.

telecommunications
recognition

the
that
electronic
for

such measures

data

and

(47) Where the rights of the users and subscribers are not
respected, national legislation should provide for judicial
remedies. Penalties should be imposed on any person,
whether governed by private or public law, who fails to
comply with the national measures taken under this
Directive.

(48) It is useful, in the field of application of this Directive, to
draw on the experience of the Working Party on the
Protection of Individuals with regard to the Processing
of Personal Data composed of representatives of
the
supervisory authorities of the Member States, set up by
Article 29 of Directive 95/46/EC.

(49) To facilitate compliance with the provisions of

this
Directive, certain specific arrangements are needed for
processing of data already under way on the date that
national
to this
Directive enters into force,

legislation pursuant

implementing

(1) OJ L 178, 17.7.2000, p. 1.

(2) OJ L 91, 7.4.1999, p. 10.

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HAVE ADOPTED THIS DIRECTIVE:

Article 1

Scope and aim

1.
This Directive harmonises the provisions of the Member
States required to ensure an equivalent level of protection of
fundamental rights and freedoms, and in particular the right to
privacy, with respect to the processing of personal data in the
electronic communications
sector and to ensure the free
movement of such data and of electronic communication
equipment and services in the Community.

The provisions of

2.
and
complement Directive 95/46/EC for the purposes mentioned
in paragraph 1. Moreover, they provide for protection of the
legitimate interests of subscribers who are legal persons.

this Directive particularise

This Directive shall not apply to activities which fall
3.
outside the scope of
the Treaty establishing the European
Community, such as those covered by Titles V and VI of the
Treaty on European Union, and in any case to activities
concerning public security, defence, State security (including
the economic well-being of
the State when the activities
relate to State security matters) and the activities of the State
in areas of criminal law.

Article 2

Definitions

the definitions

in Directive
Save as otherwise provided,
95/46/EC and in Directive 2002/. . ./EC of
the European
Parliament and of the Council of . . . on a common regulatory
framework for
and
electronic
services (framework Directive) (1), shall apply.

communications networks

The following definitions shall also apply:

(a)

‘user’ means any natural person using a publicly available
electronic communications service, for private or business
purposes, without necessarily having subscribed to this
service;

(b) ‘traffic data’ means any data processed for the purpose of
the conveyance of a communication on an electronic
communications network or for the billing thereof;

(c)

‘location data’ means any data processed in an electronic
communications
geographic
position of
the terminal equipment of a user of a
publicly available electronic communications service;

indicating

network,

the

(d)

‘communication’ means any information exchanged or
conveyed between a finite number of parties by means of

(1) OJ L . . .

a publicly available electronic communications service. This
does not include any information conveyed as part of a
broadcasting service to the public over an electronic
communications network except
the
information can be related to the identifiable subscriber
or user receiving the information;

to the extent

that

(e)

‘call’ means a connection established by means of a publicly
available telephone service allowing two-way communi-
cation in real time;

(f)

‘consent’ by a user or subscriber corresponds to the data
subject's consent in Directive 95/46/EC;

(g)

‘value added service’ means any service which requires the
processing of traffic data or location data other than traffic
data beyond that which is necessary for the transmission of
a communication or the billing thereof;

(h) ‘electronic mail’ means any text, voice, sound or image
message sent over a public communications network
which can be stored in the network or in the recipient's
it is collected by the recipient.
terminal equipment until

Article 3

Services concerned

1.
This Directive shall apply to the processing of personal
data in connection with the provision of publicly available
electronic communications services in public communications
networks in the Community.

Articles 8, 10 and 11 shall apply to subscriber lines
technically
it does not
a disproportionate
to subscriber lines connected to analogue

2.
connected to digital
possible and if
economic effort,
exchanges.

and, where

exchanges

require

3.
Cases where it would be technically impossible or require
a disproportionate economic effort to fulfil the requirements of
Articles 8, 10 and 11 shall be notified to the Commission by
the Member States.

Article 4

Security

1.
The provider of a publicly available electronic communi-
cations service must take appropriate technical and organisa-
tional measures to safeguard security of its services, if necessary
in conjunction with the provider of the public communications
network with respect to network security. Having regard to the
state of the art and the cost of their implementation, these
measures shall ensure a level of security appropriate to the
risk presented.

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In case of a particular risk of a breach of the security of
2.
the network, the provider of a publicly available electronic
communications
subscribers
concerning such risk and, where the risk lies outside the
scope of the measures to be taken by the service provider, of
any possible remedies,
including an indication of the likely
costs involved.

service must

inform the

Article 5

Confidentiality of the communications

the

shall

ensure

1. Member States
confidentiality of
communications and the related traffic data by means of a
public communications network and publicly available elec-
tronic communications services, through national
legislation.
In particular, they shall prohibit listening, tapping, storage or
other kinds of interception or surveillance of communications
and the related traffic data, by persons other than users,
without
the users concerned, except when
legally authorised to do so, in accordance with Article 15(1).
This paragraph shall not prevent technical storage which is
necessary for the conveyance of a communication without
prejudice to the principle of confidentiality.

the consent of

Paragraph 1 shall not affect any legally authorised
2.
recording of communications and the related traffic data
when carried out in the course of lawful business practice
for the purpose of providing evidence of a commercial trans-
action or of any other business communication.

3. Member States shall ensure that the use of electronic
communications networks to store information or to gain
access to information stored in the terminal equipment of a
subscriber or user is only allowed on condition that
the
subscriber or user concerned receives in advance clear and
comprehensive information,
inter alia, about the purposes of
the processing, in accordance with Directive 95/46/EC, and is
to refuse such processing by the data
offered the right
controller. This shall not prevent any technical storage or
access for the sole purpose of carrying out or facilitating the
transmission of a communication over an electronic communi-
cations network, or as strictly necessary in order to provide an
the
information society
subscriber or user.

requested by

explicitly

service

Article 6

Traffic data

processing is permissible only up to the end of the period
during which the bill may lawfully be challenged or payment
pursued.

For the purpose of marketing electronic communications
3.
services or for the provision of value added services,
the
provider of a publicly available electronic communications
service may process the data referred to in paragraph 1 to
the extent and for the duration necessary for such services or
marketing, if the subscriber or user to whom the data relate
has given his consent. Users or subscribers shall be given the
possibility to withdraw their consent for the processing of
traffic data at any time.

4.
The service provider must inform the subscriber or user
of the types of traffic data which are processed and of the
duration of such processing for the purposes mentioned in
paragraph 2 and, prior
the
purposes mentioned in paragraph 3.

to obtaining consent,

for

Processing of traffic data, in accordance with paragraphs
5.
1, 2, 3 and 4, must be restricted to persons acting under the
authority of providers of the public communications networks
and publicly available electronic communications
services
handling billing or traffic management, customer enquiries,
fraud detection, marketing electronic communications services
or providing a value added service, and must be restricted to
what is necessary for the purposes of such activities.

6.
Paragraphs 1, 2, 3 and 5 shall apply without prejudice to
the possibility for competent bodies to be informed of traffic
data in conformity with applicable legislation with a view to
settling disputes,
interconnection or billing
disputes.

in particular

Article 7

Itemised billing

Subscribers shall have the right to receive non-itemised

1.
bills.

2. Member States shall apply national provisions in order to
reconcile the rights of subscribers receiving itemised bills with
the right to privacy of calling users and called subscribers, for
alternative privacy
example by
enhancing methods of communications or payments are
available to such users and subscribers.

sufficient

ensuring

that

1.
Traffic data relating to subscribers and users processed
and stored by the provider of a public communications
network or publicly available
communications
service must be erased or made anonymous when it is no
longer needed for
the transmission of a
communication without prejudice to paragraphs 2, 3, 5 of
this Article and Article 15(1).

the purpose of

electronic

2.
Traffic data necessary for the purposes of subscriber
billing and interconnection payments may be processed. Such

Article 8

Presentation and restriction of calling-and connected-line
identification

calling-line

identification is
1. Where presentation of
offered, the service provider must offer the calling user the
possibility, using a simple means and free of charge, of
preventing the presentation of the calling-line identification
on a per-call basis. The calling subscriber must have this possi-
bility on a per-line basis.

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identification is
2. Where presentation of
offered, the service provider must offer the called subscriber
the possibility, using a simple means and free of charge for
reasonable use of this function, of preventing the presentation
of the calling-line identification of incoming calls.

calling-line

3. Where presentation of calling-line identification is offered
and where the calling-line identification is presented prior to
the call being established, the service provider must offer the
called subscriber the possibility, using a simple means, of
rejecting incoming calls where
the
calling-line identification has been prevented by the calling
user or subscriber.

the presentation of

4. Where presentation of connected-line identification is
offered, the service provider must offer the called subscriber
the possibility, using a simple means and free of charge, of
preventing the presentation of the connected-line identification
to the calling user.

Paragraph 1 shall also apply with regard to calls to
5.
non-member
the Community.
originating
Paragraphs 2, 3 and 4 shall also apply to incoming calls orig-
inating in non-member countries.

countries

in

connected-line

6. Member States shall ensure that where presentation of
the
calling-and/or
providers of publicly available electronic communications
services inform the public thereof and of the possibilities set
out in paragraphs 1, 2, 3 and 4.

identification is offered,

Article 9

Location data other than traffic data

1. Where location data other than traffic data, relating to
users or subscribers of public communications networks or
publicly available electronic communications services can be
processed, such data may only be processed when they are
the users or
made anonymous, or with the consent of
subscribers to the extent and for the duration necessary for
the provision of a value added service. The service provider
must inform the users or subscribers, prior to obtaining their
consent, of the type of location data other than traffic data
which will be processed, of the purposes and duration of the
processing and whether the data will be transmitted to a third
party for the purpose of providing the value added service.
shall be given the possibility to
Users or
location data
withdraw their consent for the processing of
other than traffic data at any time.

subscribers

Processing of

location data other than traffic data in
3.
accordance with paragraphs 1 and 2 must be restricted to
the
persons acting under the authority of
public
available
or
network
communications service or of the third party providing the
value added service, and must be restricted to what
is
necessary for
the purposes of providing the value added
service.

the provider of

communications

publicly

Article 10

Exceptions

shall

ensure

Member States
transparent
procedures governing the way in which a provider of a
public communications network and/or a publicly available
electronic communications service may override:

there

that

are

(a) the elimination of the presentation of calling-line identifi-
cation, on a temporary basis, upon application of a
subscriber requesting the tracing of malicious or nuisance
calls. In this case, in accordance with national law, the data
containing the identification of the calling subscriber will
be stored and be made available by the provider of a public
communications network and/or publicly available elec-
tronic communications service;

(b) the elimination of the presentation of calling-line identifi-
cation and the temporary denial or absence of consent of a
subscriber or user for the processing of location data, on a
per-line basis for organisations dealing with emergency
such by a Member State,
calls
including law enforcement agencies, ambulance services
and fire brigades, for the purpose of responding to such
calls.

and recognised as

Article 11

Automatic call forwarding

Member States shall ensure that any subscriber has the possi-
bility, using a simple means and free of charge, of stopping
automatic call forwarding by a third party to the subscriber's
terminal.

Article 12

Directories of subscribers

the users or subscribers has been
2. Where consent of
obtained for the processing of location data other than traffic
data, the user or subscriber must continue to have the possi-
bility, using a simple means and free of charge, of temporarily
refusing the processing of such data for each connection to the
network or for each transmission of a communication.

1. Member States shall ensure that subscribers are informed,
free of charge, about the purpose(s) of printed or electronic
directories of subscribers available to the public or obtainable
through directory enquiry services, in which their personal data
can be included and of any further usage possibilities based on
search functions embedded in electronic versions of
the
directory.

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2. Member States shall ensure that subscribers are given the
opportunity,
to determine whether their personal data are
included in a public directory, and if so, which, to the extent
that such data are relevant for the purpose of the directory as
determined by the provider of the directory, and to verify,
correct or withdraw such data. Not being included in a
public subscriber directory, verifying, correcting or with-
drawing personal data from it shall be free of charge.

3. Member States shall ensure that for any purpose of a
public directory other than the search of contact details of
persons on the basis of their name and, where necessary, a
minimum of other identifiers, the additional consent of the
subscribers is required.

Paragraphs 1 and 2 shall apply to subscribers who are
4.
in the
natural persons. Member States shall also ensure,
framework of Community law and applicable national
legis-
lation, that the legitimate interests of subscribers other than
natural persons with regard to their entry in public directories
are sufficiently protected.

Article 13

Unsolicited communications

The use of automated calling systems without human
1.
fax machines or
intervention (automatic calling machines),
electronic mail
for the purposes of direct marketing may
only be allowed in respect of subscribers who have given
their prior consent.

2.
Notwithstanding paragraph 1, where a natural or legal
person obtains electronic contact details for electronic mail
directly from its customers, in the context of the purchase of
a product or a service, in accordance with Directive 95/46/EC,
the same natural or legal person may use these electronic
contact details
its own similar
for direct marketing of
products or services, provided that customers are given the
opportunity to object clearly and distinctly,
free of charge
and in an easy manner,
to such use of electronic contact
details when they are collected and on the occasion of each
message where the customer has not initially refused such use.

3. Member States shall take appropriate measures to ensure
that, free of charge, unsolicited communications for purposes
of direct marketing, by means other than those referred to in
paragraph 1, are not allowed either without the consent of the
subscribers concerned or in respect of subscribers who do not
wish to receive these communications,
the choice between
these options to be determined by national legislation.

4.
In any event, the practice of sending electronic mail for
purposes of direct marketing disguising or concealing the

identity of the sender on whose behalf the communication is
made, or without a valid address to which the recipient may
send a request
that such communications cease, shall be
prohibited.

Paragraphs 1 and 3 shall apply to subscribers who are
5.
in the
natural persons. Member States shall also ensure,
framework of Community law and applicable national
legis-
lation, that the legitimate interests of subscribers other than
natural persons with regard to unsolicited communications
are sufficiently protected.

6.
The Commission shall submit to the European Parliament
and the Council, not later than three years after the date of
application given in Article 17(1), a report on the effects on
consumers and economic operators of this Article, taking into
account the international environment. Where appropriate, the
Commission shall submit proposals for the amendment of this
provision to take account of the results of the abovementioned
report and any changes in the sector and any other proposal it
may deem necessary.

Article 14

Technical features and standardisation

1.
In implementing the provisions of this Directive, Member
States shall ensure, subject to paragraphs 2 and 3, that no
features are
mandatory requirements for specific technical
imposed on terminal or other electronic communication
equipment which could impede the placing of equipment on
the market and the free circulation of such equipment in and
between Member States.

features

2. Where provisions of this Directive can be implemented
in electronic
only by requiring specific technical
inform the
communications networks, Member States shall
Commission in accordance with the procedure provided for
by Directive 98/34/EC of the European Parliament and of the
Council of 22 June 1998 laying down a procedure for the
provision of information in the field of technical standards
and regulations (1).

their personal data,

3. Where required, the Commission shall adopt measures to
ensure that terminal equipment is constructed in a way that is
compatible with the right of users to protect and control the
use of
in accordance with Directive
1999/5/EC of the European Parliament and of the Council of
9 March 1999 on radio equipment and telecommunications
their
terminal equipment and the mutual
conformity (2)
of
and
22 December 1986 on standardisation in the
field of
information technology and communications (3).

recognition of
87/95/EEC

Decision

Council

(1) OJ L 204, 21.7.1998, p. 37. Directive as amended by Directive

98/48/EC (OJ L 217, 5.8.1998, p. 18).

(2) OJ L 91, 7.4.1999, p. 10.
(3) OJ L 36, 7.2.1987, p. 31. Decision as last amended by the 1994

Act of Accession.

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Article 15

Application of certain provisions of Directive 95/46/EC

1. Member States may adopt legislative measures to restrict
the scope of the rights and obligations provided for in Article
5, Article 6, Article 8(1)(2)(3) and (4), and Article 9 of this
Directive when such restriction constitutes a necessary measure
to safeguard national security,
(i.e. State security) defence,
public security or the prevention, investigation, detection and
prosecution of criminal offences or of unauthorised use of the
electronic communications system, as referred to in Article
13(1) of Directive 95/46/EC. To this end Member States may,
inter alia, provide for the retention of data for a limited period
in
justified on the grounds laid down in this paragraph,
accordance with the general principles of Community law.

The provisions of Chapter

2.
remedies,
liability and sanctions of Directive 95/46/EC shall apply with
regard to national provisions adopted pursuant to this Directive
and with regard to the individual rights derived from this
Directive.

III on judicial

The Working Party on the Protection of Individuals with
3.
regard to the Processing of Personal Data instituted by Article
29 of Directive 95/46/EC shall also carry out the tasks laid
down in Article 30 of that Directive with regard to matters
covered by this Directive, namely the protection of
funda-
mental rights and freedoms and of legitimate interests in the
electronic communications sector.

Article 16

Transitional arrangements

Article 12 shall not apply to editions of directories
in printed or
the national provisions

1.
already produced or placed on the market
off-line
adopted pursuant to this Directive enter into force.

form before

electronic

2. Where the personal data of subscribers to fixed public
voice telephony services have been included in a public
subscriber directory in conformity with the provisions of
Article 11 of Directive 97/66/EC before the national provisions
adopted in pursuance of this Directive enter into force, the
personal data of such subscribers may remain included in
this public directory in its printed or electronic versions,
unless subscribers indicate otherwise, after having received
complete
in
accordance with Article 12 of this Directive.

information about purposes

and options

Article 17

Transposition

1.
Before . . . (*) Member States shall adopt and publish the
provisions necessary to comply with this Directive. They shall
forthwith inform the Commission thereof.

They shall apply these provisions from . . . (*).

When Member States adopt those provisions, they shall contain
a reference to this Directive or be accompanied by such a
reference on the occasion of their official publication. The
methods of making such reference shall be laid down by the
Member States.

2. Member States shall communicate to the Commission the
text of the provisions of national law which they adopt in the
field governed by this Directive and of any subsequent
amendments to those provisions.

Article 18

Repeal

Directive 97/66/EC is repealed with effect from the date of
application referred to in Article 17(1).

References made to the repealed Directive shall be construed as
being made to this Directive.

Article 19

Entry into force

This Directive shall enter into force on the day of its publi-
cation in the Official Journal of the European Communities.

Article 20

Addressees

This Directive is addressed to the Member States.

Done at . . .

For the European Parliament

The President

For the Council

The President

(*) . . . months after the date of entry into force of this Directive.

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STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

1. The Commission forwarded the above proposal for a Directive to the Council on 28 August

2000 (1).

2. The European Parliament delivered its opinion on 13 November 2001.

3. The Economic and Social Committee delivered its opinion on 24 January 2001 (2).

4. The Committee of the Regions informed the Council of its intention not to deliver an opinion on

the proposal.

II. OBJECTIVES

The proposed Directive is part of a package of proposals concerning a regulatory framework for
electronic communications infrastructure and associated services, adopted by the Commission in
mid-2000 with a view to adapting Community legislation to the profound changes which have
occurred in telecommunications, media and information technology.

The proposal, which concerns the processing of personal data and the protection of privacy, is not
intended to create major changes to the substance of the existing Directive (97/66/EC) but merely
adapts and updates its provisions to take account of new and foreseeable developments in electronic
communications. It will do this by creating rules which are technologically neutral, while maintaining a
high level of data protection and privacy for citizens.

III. ANALYSIS OF THE COMMON POSITION

The Council welcomed the proposal,
provisions.

fully endorsing its objectives and approving most of

the

The Council's amendments to the text of the Commission proposal were motivated by the following
major concerns:

— the need to upgrade the level of protection for subscribers and users,

— consideration of the technical requirements involved in providing new communications services,

— a wording better reflecting the balance between protection of privacy requirements and the needs of

Member State authorities responsible for ensuring security in a democratic society,

— the need to clarify the scope of the Directive's provisions in accordance with the guidelines on the

editorial quality of Community legislation.

In many instances identical or similar changes are adopted in the European Parliament's amendments
(see below, Section IV, points 1 and 2).

On two important questions, namely directories of subscribers (Article 12) and unsolicited communi-
cations (Article 13), the Council followed the Commission's opt-in approach but introduced technical
and other adjustments to the latter's proposal. It was therefore unable to endorse certain European
Parliament amendments which marked a departure from the Commission proposal, as explained in
point 3 of Section IV.

— The Council agreed in particular to make it possible, under Article 16(2), for directories of voice
telephony subscribers to derogate from the obligation to obtain the consent of the persons
concerned to the continuing inclusion of their information in these directories.

(1) OJ C 365 E, 19.12.2000, p. 223.
(2) OJ C 123, 25.4.2001, p. 53.

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The Council also thought it useful to clarify certain areas of the text of the Commission proposal in the
light of the serious threat posed by the events of 11 September 2001. Article 15(1) was extended to
include the retention of data for a limited period in accordance with the general principles of
Community law among the legislative measures which Member States may adopt
to safeguard
in a balanced way.
certain major public security interests. Recital 11 was adapted, accordingly,
Finally, a reference to Article 15(1) was added to Article 6(1) as a reminder that limitations on the
principle of the erasure of traffic data are possible not only for network or service providers but also
for Member States' authorities responsible for defending the aforementioned public interests. In this
context, the Council was unable to agree to certain European Parliament amendments (see point 3 of
Section IV).

IV. EUROPEAN PARLIAMENT AMENDMENTS

1. European Parliament amendments accepted by the Council

amendment 2 (new recital 16),

amendment 7 adopted in recital 26,

amendment 8 adopted in recital 17,

amendment 9 adopted in recital 22,

amendment 10 adopted in recital 23,

amendment 12 adopted in recital 31,

amendments 14 and 15 adopted in recital 32,

amendment 17 adopted in recital 39,

amendment 21 adopted, subject to certain minor editorial changes, in Article 2(d),

amendment 22 adopted in Article 2(g) and (h),

amendment 23 adopted in Article 4(2),

amendment 24 adopted in Article 5(1),

amendment 28 adopted in Article 6(3),

amendment 29 adopted in Article 6(4),

amendment 30 adopted in Article 6(5),

amendment 31 adopted in Article 6(6),

amendment 32 adopted in Article 9, Title and (1), subject to certain editorial discrepancies in the
last section.

2. European Parliament amendments accepted in part or in substance by the Council

amendment 1 adopted with a different wording in recital 2,

amendment 3 adopted with a different wording in recital 9,

amendment 5 adopted in part in recital 20,

amendment 11 adopted with a more flexible wording in recital 33,

amendment 19, most of which (except the words ‘personal data’) was adopted in Article 2(b),

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amendment 26 adopted as to the principle, albeit with a different approach. The Council wanted to
emphasise the different nature of ‘cookies’ and spyware in recitals 24 and 25 and to ensure respect
in Article 5(3) for the rights of the persons concerned, as guaranteed by Directive 95/46/EC. The
Council therefore introduced the requirement that subscribers or users be informed in advance of
the use of these devices and laid down that they have the right to refuse the latter but not actively to
insist on their consent, as provided for in the European Parliament's amendment. The Council took
into account the fact, particularly, that in many instances these devices are intended to facilitate
provision of the service in question,

amendment 36, the second part of which is adopted in Article 14(3),

amendments 39 and 40 were adopted, except for the words ‘editions of’, in Article 16(1),

amendment 41 was adopted as to its principle in Article 17(1), on the understanding that the
simultaneous entry into force of the various Directives in the telecommunications package should be
sought, whilst allowing Member States sufficient time for transposition,

amendment 42 was adopted as to its principle as regards the review of Article 13(6) on unsolicited
communications.

3. European Parliament amendments not accepted by the Council

amendment 4 on recital 11

— the Council thought that the text which it had adopted for recital 11 ensured more effectively
than this amendment the required balance between protection of privacy and the needs of
national authorities
It mentioned both the restrictive
measures which could be taken by the Member States and the conditions with which such
measures had to comply in accordance with the European Convention on Human Rights,

responsible for ensuring security.

amendment 6 on recital 21

— the Council preferred to abide by the Commission proposal and thought that the reference to
cryptography tools extended the scope of the measures provided for in Article 5(1) in a way
which was inappropriate in a recital,

amendment 13 on recital 34

— the Council preferred to abide by the Commission proposal since one element of

the
amendment did not appear to be wholly compatible with Article 8 and another seemed likely
to introduce unnecessary inflexibility,

amendment 18 on Article 1(3)

— the Council preferred to retain the text of the Directive in force and thought that from the
standpoint of transparency and legislative clarity it was better to keep the list of activities not
covered by the Directive,

amendment 20

— in the Council's view, this amendment was incompatible with amendment 19, virtually all of

which it had adopted,

amendment 25

— like the Commission, the Council thought that this addition was inappropriate in the Directive,
which concerns communications services accessible to the public on public networks, it being
understood that Directive 95/46/EC continues to apply to the employment relationships referred
to in this amendment,

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amendment 27

— the Council thought that this amendment brought no actual added value to the text of the

present Directive and of the Commission proposal,

amendments 16, 33 and 34

— on the matter of directories of subscribers, the Council preferred to follow the Commission's
proposed new approach in order to reconcile the opportunity for suppliers to develop directory
services with a higher level of subscriber opt-in protection and a simpler wording for Article 12.
The Council also took account of the situation in the mobile telephony sector. For these reasons,
it did not adopt the European Parliament's amendments, the basic aim of which was to reinstate
the text of the present Directive,

amendments 35 and 44 on unsolicited communications

— the text of the Common Position does not include these amendments in so far as they modify
the Commission proposal, supported as to its principle by the Council. Indeed, with protection
of the subscriber and of technological neutrality in mind, the Council thought that the subscriber
consent arrangements should embrace every use of electronic mail for the purposes of direct
marketing purposes, and not just SMS, as proposed by the European Parliament However, it
thought that both these amendments and European Parliament amendment 42 could usefully be
made more flexible with the inclusion of, respectively, a derogation option in the case of certain
previous business relations (Article 13(2)) and a review clause (Article 13(6)). It also adopted in
improvement guaranteeing that dispatches remain fair which was
Article 13(4) the textual
proposed by the European Parliament,

amendment 37

— the Council thought it inappropriate to include details of the case-law of the European Court of
Human Rights in an Article of a Community Directive. As previously mentioned, it preferred to
do this in more summary fashion in recital 11,

amendment 38

— the Council thought that this European Parliament amendment was inappropriate, since the
Working Party instituted by Article 29 of Directive 95/46/EC was a body composed of represen-
tatives of Member States' national control authorities responsible for providing the Commission
with high-level advice and expertise. The Council was also mindful of the fact that the consul-
tations proposed in this amendment had already taken place nationally or could yet take place at
the instigation of the Working Party or of the Commission.