PERSONAL DATA AND PRIVACY IN TELECOMMUNICATIONS
(21561)
10961/00
COM(00) 385
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Draft 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.
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| Legal base:
| Article 95 EC; co-decision; qualified majority voting
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| Document originated:
| 12 July 2000 |
| Forwarded to the Council:
| 28 August 2000 |
| Deposited in Parliament:
| 12 September 2000 |
| Department: |
Trade and Industry |
| Basis of consideration:
| EM of 10 October 2000 |
| Previous Committee Report:
| None |
| To be discussed in Council:
| 22 December 2000 |
| Committee's assessment:
| Politically important |
| Committee's decision:
| Not cleared; further information requested
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Background
14.1 This draft Directive is one of seven
proposals for legislation that will form the new regulatory framework
for electronic communications networks and services. They were
anticipated in the Commission Communication on the results of
the public consultation on the 1999 Communications Review which
the Committee considered on 24 May and 19 July and which was debated
in European Standing Committee C on 16 February 2000.[41]
14.2 The other six proposals are also considered
today. They are listed in the paragraph on the draft Directive
on a common regulatory framework for electronic communications
networks and services[42].
14.3 A further proposal, the draft Council
Regulation on unbundled access to the local loop[43],
was considered and cleared on 25 October and 1 November. It will
complement the existing telecoms framework.
The draft Directive
14.4 The aim of this proposal is to adapt
and update the existing provisions in the Telecoms Data Protection
Directive[44]
to take account of new and foreseeable developments in electronic
communications and services. This should ensure that the same
service is regulated in an equivalent manner and that consumers
benefit from the same level of protection, regardless of which
technology is used to deliver it.
14.5 This will be achieved primarily by
replacing the existing definitions of telecommunications services
and networks with new definitions for electronic communications
and services, to ensure technological neutrality, in line with
the proposed Framework Directive. Other proposed changes to the
existing Directive can be summarised as follows:
— Location Data — Article 9
14.6 A new Article has been introduced to
safeguard consumers using mobile location information services,
such as those which provide route information to vehicle drivers,
from having their location disclosed by service providers without
their consent. Article 10 has been extended to cover new Article
9. It will now require transparent procedures governing the way
in which network or service providers may override the protection
afforded, for instance when access to the information is required
by the emergency services and law enforcement agencies.
— Directories of Subscribers — Article
12
14.7 This Article will be simplified to
allow subscribers to verify, correct or withdraw personal data
from a directory free of charge. It will also take account of
new electronic communications services and new types of directory
services such as reverse searching functions where a subscriber's
address could be determined from their telephone number. Subscribers
are to be informed about the purposes of directories to which
the public has access and of any further use which could be made
of information on them through search functions embedded in the
electronic versions. Member States are required to ensure that
subscribers can determine whether and to what extent their personal
data is to be included in public directories.
— Unsolicited Communications — Article
13
14.8 This Article has been extended to cover
all forms of electronic communication, with unsolicited commercial
e-mail included under an opt-in approach.
— Technical features and standardisation
— Article 14
14.9 This Article has been updated with
references to the new Radio and Telecommunications Terminal Equipment
Directive[45].
— Application of certain provisions of the
Data Protection Directive (95/46/EC) — Article 15
14.10 This Article specifies where Member
States may restrict provisions of the directive to safeguard public
security and the conduct of criminal investigations. It has been
updated to include new Article 9 in the scope of the derogation.
Impact on UK Law
14.11 The Minister for Small Business and
E-Commerce at the Department of Trade and Industry (Ms Patricia
Hewitt) notes that:
"The existing Directive
is implemented by a range of secondary legislation under the European
Communities Act 1972, operating licences issued under the Telecommunications
Act, the Regulation of Investigatory Powers Act 2000, and the
Telecommunications (Lawful Business Practice) (Interception of
Communications) Regulations 2000. Implementation of this proposal
would be likely to be done through the Government's proposed reform
of the framework of communications regulation and/or Regulations
under the European Communities Act 1972."
The Government's view
14.12 The Minister comments:
"The Government agrees
with the Commission that advances in technology and services since
the existing Directive was envisaged in 1992 need to be taken
into account. The clarifications in the proposal, particularly
with respect to its applicability to e-mail, and the moves to
put in place a harmonised EU-wide framework to provide protection
from unsolicited electronic communications of all types, are welcomed,
as is the clarification in relation to directories of e-mail addresses
and mobile numbers.
"However, the Government considers that the
Directive should only deal with those areas where sectorspecific
rules are necessary. Certain elements, such as the proposals for
traffic and billing data, might best be dealt with by horizontal
rules under the 2001 review of the Data Protection Directive rather
than in this proposal under the 1999 Communications Review."
Timetable
14.13 The proposed Directive is likely to
be the subject of negotiations in early to mid 2001, according
to the Minister.
Conclusion
14.14 We note that negotiations on this
draft are not likely to be started until next year. We ask the
Minister to keep us informed of progress and to ensure that we
are given an opportunity to consider the proposal again, as amended
at that time, before it is put to Council for a Common Position.
We ask the Government to tell us at that point whether it has
been discussed with the Data Protection Commissioner and whether
she is content with it.
14.15 Meanwhile, we shall not clear this
document.
41 (21189) 8330/00; see HC 23-xix (1999-2000), paragraph
7 (24 May 2000) and HC 23-xxv (1999-2000), paragraph 8 (19 July
2000); Official Report, European Standing Committee C,
16 February 2000. Back
42 (21562)10962/00;
see paragraph 15 of this Report. Back
43 (21563)
10964/00; see HC 23-xxvii (1999-2000), paragraph 23 (25 October
2000); and (21695) - ; see HC 23-xxviii (1999-2000), paragraph
32 (1 November 2000). Back
44 Directive
97/66/EC; OJ No. L 24, 30.1.98, p.1. Back
45 Directive
99/5/EC. Back
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