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This article will critically assess the protection of privacy in the electronic communications sector according to European Directive 2002/85/EC and the resultant privacy and Electronic Communication (EC Directive) Regulations 2003.

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Introduction: As a direct result of the explosion in the provision and availability of telecommunications services in the 1980s and early 1990s, concerns arose over the privacy of individuals regarding the use and operation of telephones and related devices. Such concerns have been multiplied with the advent of digital technology, the availability of calling line identification, the explosion of internet trading, mobile phones and new services and technologies such as text messages, location data and cookies. Although data protection legislation applies to the electronic communication sector in the same way as it does to other industries, the European Union considered that extra safeguard were required. The most recent EU legislation in this rapidly changing area of commercial life is the directive concerning the processing of personal data and the protection of the privacy in the electronic communication sector (2002/58/EC) ( the Directive on Privacy and Electronic Communication).The UK implemented the Directive on Privacy and Electronic Communication by way of secondary legislation namely the Privacy and Electronic Communications ( EC Directive) regulation2003. The Electronic Privacy Directive acknowledges that electronic communications over the internet open new possibilities for users, but also new risk for their personal data and privacy therefore, it seeks to ensure the confidentiality of electronic communications and related traffic data via public networks, including email, Short Messaging Service ("SMS") and requires Member States to prohibit interception or surveillance of communications. The main objective of the Electronic Privacy Directive is that consumers should be able to obtain the same level of protection regardless of the technology by which a particular service is delivered. In addition, the new Directive harmonizes the provisions of the Member States relating to privacy with respect to the electronic processing of personal data1, and the free movement of such data and related communications equipment within the Community. This article will critically assess the protection of privacy in the electronic communications sector according to European Directive 2002/85/EC2 and the resultant privacy and Electronic Communication (EC Directive) ...read more.


Article 5 (3) conditions the use of Cookies to the provision of clear and precise information in accordance with Directive 95/46 about the purpose of the Cookies or similar devices so as to ensure that users are made fully aware of the information being placed on the terminal that they are using, it also conditions the use of cookies to the possibility for the user to refuse to have a cookie or similar devices stored on their terminal equipment. However, the article implicitly admits that in the event that one refuses the placing of a cookie for legitimate purpose, access to specific web site content may be refused. Indeed according to the terms of the Directive, the refusal: " shall not prevent any technical storage or access for the sole purpose of carrying out or facilitating the transmission of a communications network, or as strictly necessary in order to provide an information society service explicitly requested by the subscriber or user".9 "One may indeed question the legitimacy of such a practice : in an off-line world it would be like tagging each individual entering a shop, whether or not he merely enters for a few moments or decides to buy goods. If he refuses the tagging he would be refused the entrance to the shop. Can one still speak of the freedom of movement?"10 The information and the right to refuse might be offered, according to the recital, once for the use of various devices to be installed on the user's terminal equipment during the same connection any further use that may be made of those devices during subsequent connections. The methods for giving information, offering a right to refuse or request consent should be made as user friendly as possible. It is interesting to note that the Directive does not mention any limits as to the conservation period of the device. Indeed, in many cases cookies are placed on the user's terminal equipment for very long period of time, which seem to exceed those necessary to pursue the legitimate purpose (30- 50 years). ...read more.


(THE PAGE LIMIT FOR THIS COURSEWORK IS : 12 PAGES) 1 Article 1 directive 2002/58/EC 2 Directive 2002/58/EC L201/37, will be referred to in this article as the Directive. 3 The Privacy and Electronic Communications Regulations 2003 (SI 2003/2426), will be referred to in this article as the Regulations. 4 European Economic Area 5 Art 13(1), Privacy Directive. For a brief history of attempts to require opt-in to spam in Europe 6 LILIAN EDWARDS, Consumer Privacy, On-Line Business And The Internet: Looking For Privacy In All The Wrong Places, IJL&IT 2003.11(226) 7 Ibid 8 A cookie is a text file which can be left, unseen, on the internet browser software of a visitor to a website 9 Directive 2002/58/EC, Article 5 (3) 10 Sophie Louveaux & Maria Veronica Perez Asinari, New European Directive 2002/58/EC on the processing of personal data and protection of privacy in the Electronic Communication Sector -some initial remarks, C.T.L.R. 2003,9 (5), 133-138. 11 Ibid 12 Supra N. 6 13 Traffic data" is defined as "any data processed for the purpose of the conveyance of a communication on an electronic communications network or for the billing thereof. Art.2(b) of the Directive 14 Art.5(1) of the Directive. 15 See Recitals 26 and 27 of the Directive. 16 Art.6 (ex Art.F) EUT (European Union Treaty). "1. The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States. 2. The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law." 17 Natasha Jarvie, CONTROL OF CYBERCRIME - IS AN END TO OUR PRIVACY ON THE INTERNET PRICE WORTH PAYING? PART 1, C.T.L.R. 2003, 9(3), 76-81. 1 ...read more.

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