Select Committee on European Scrutiny Thirty-Second Report



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.

Legal base:Article 95 EC; co-decision; qualified majority voting
Department:Trade and Industry
Basis of consideration:EM of 10 June 2002
Previous Committee Report:None; but see (21561): HC 152-xxix (2001-02), paragraph 11 (15 May 2002) and HC 152-vii (2001-02), paragraph 18 (21 November 2001)
To be taken in Council:As an 'A' point at the 18 June Telecoms Council
Committee's assessment:Politically important
Committee's decision:Cleared, but further information requested

The draft Directive

  19.1  This draft Directive is one of seven proposals for legislation, known as the telecoms regulatory package, that will form the new regulatory framework for electronic communications networks and services. The aim of this proposal is to adapt and update the existing provisions in the Telecoms Data Protection Directive[41] to take account of developments in technology 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.

  19.2  Key features of the new Directive are:

  • new provisions in Articles 6 and 9 which will allow value added services based on traffic and location data with the prior consent of subscribers;

  • a requirement for information and consent before inclusion in subscriber directories, including directories which have a reverse search function where a subscriber's address could be identified from their phone number; opt-in rules for unsolicited commercial e-mail and text messages to mobiles; explicit scope for data retention for law enforcement and security purposes; and

  • a requirement for information and the right to refuse cookies[42] and similar tracking devices.

Second Reading Agreement and the Government's view

  19.3  On 13 May 2002, the former Minister for E-Commerce and Competitiveness (Mr Douglas Alexander) informed us of progress on this proposal.[43] He told us that it looked possible that a Second Reading Agreement could be concluded on the draft, and outlined the shape of the possible compromise.

  19.4  On 30 May, during this Parliament's Whitsun Recess, the European Parliament voted for a compromise text. The new Minister for E-Commerce and Competitiveness (Mr Stephen Timms) says, in his Explanatory Memorandum, that the unofficial text, an Information Note, sets out the amendments which were supported by the Council and were acceptable to the Commission. They cover data retention, cookies, subscriber directories and unsolicited commercial e-mail, as well as the implementation and review provisions. He comments on the amended text as follows:

"The Government welcomes the new Directive which will update and clarify the current telecoms data protection framework, and supports the amendments voted at Second Reading which we consider fully compatible with the approach agreed for Common Position and the UK's negotiating aims: we believe the overall outcome is as good as, if not better than, what we could have expected from formal conciliation on the Directive.

"The amendments to Recital 11 and Article 15 retain the explicit reference to the scope for data retention provisions which the UK sought during negotiations in Council, but balance this with stronger references to the need for proper safeguards, including the need to comply with the European Convention of Human Rights and Fundamental Freedoms, (referred to in Article 6[(1) and] (2) of the Treaty on European Union), and interpreted in rulings of the European Court of Human Rights.

"On cookies and other tracking devices, the amendments to Recital 25 and Article 5 support the common position approach that operators should provide information and a chance to refuse cookies, rather than the Parliament's initial stance which was that there should be a prior consent requirement. The amendment deletes the express requirement for information to be provided in advance, in response to industry concerns that this could hinder some web services, although Article 5 is still open to being interpreted by the courts as requiring advance information. We support this amendment, and the interpretation that advance information is not required, given that cookies can be disabled retrospectively as well as blocked in advance, and that the amendment will not affect the separate Data Protection Directive (95/46/EC) requirement for fair processing which will apply where cookies involve the processing of personal data (not all do).

"The amendments on unsolicited commercial e-mail (to Recital 41, and Article 13) support the Common Position approach that the general rule should be opt-in, but with an opt-out exemption for e-mail sent in the context of an existing customer relationship, provided that the e-mail addresses have been properly obtained in accordance with Directive 95/46/EC, and that the addressee is always given the chance to opt out of further messages. These amendments were intended by the EP to support a broader interpretation of the opt-out exemption - that it would apply in cases where the addressee had enquired rather than actually bought from the sender. The Government supports this interpretation, although the text is still at least equally open to the narrower interpretation. The amendments to Recital 44 replace the existing text, which covered the application of direct marketing rules to some activities carried out by political and charitable organisations, with a statement on the use of filtering systems designed to allow subscribers to block and delete unwanted e-mail without having to download or read it. We support all these amendments.

"On the fourth key area, subscriber directories, the amendments to Articles 12 and 16 strengthen the requirement for subscribers to be informed in advance about the directories in which they may be included, but leave it to Member States to decide whether they want to impose a separate consent requirement on directories which have reverse search functions. They also widen the transitional provisions that will ensure that subscribers who already have entries in directories when the new rules come into force will stay in unless they choose to withdraw - this now applies to mobile phone entries and directories with reverse search functions as well as fixed voice telephony entries. The Government believes that these amendments overall retain and reinforce the principle of informed consent and they are acceptable".

  19.5  The directories referred to in Articles 12 and 16 are those which are available to the public or obtainable through directory enquiry services, in which their personal data can be included. Under Article 12 of the Common Position text, Member States shall ensure that subscribers are informed, free of charge, about the purpose(s) of these printed or electronic directories "and of any further usage possibilities based on search functions embedded in electronic versions of the directory". The new rules will save the directory operators from the need to go back to subscribers who are already in such publicly available directories to seek their consent.


  19.6  We thank the Minister for providing us with this Explanatory Memorandum before the compromise text is put to the Council. We clear the document but ask the Government to tell us, in due course, how it intends to decide the matter of a separate consent requirement in respect of directories which have reverse search functions.

41  Directive 97/66/EC; OJ No. L 24, 30.1.98, p.1. Back

42  Cookies and similar devices are text files sent out by web-servers and stored on users' terminals. They are used by web-site operators to gather information about visitors to their sites, such as their Internet Service Provider, address, and sites/pages visited.  Back

43  (21561): see headnote. Back

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