The privacy and electronic communications directive

The Privacy Directive emerged out of the European Commission’s 1999 review of the electronic communications regulatory regime and its provisions are intended to complement those of the Telecoms Data Protection Directive.  The objective of the Privacy Directive is to ensure that the rules which currently apply to phone and fax services will be extended to email and SMS and that privacy will be respected when individuals use electronic networks and services.

Draft Regulations to implement the Privacy Directive were published by the DTI on 27 March 2003 signalling the beginning of a 12 week consultation period.

The key new features of the Regulations are as follows:

  1. Individuals will have to have given consent (in the form of an opt in) prior to the sending of unsolicited commercial email and SMS messages.  The Regulations as currently drafted do provide that in the context of an existing customer relationship, companies may email (or text) such customers providing that they are marketing their own similar products and the customer is easily able to opt out of receiving such communications in the future.  Exactly what comprises “similar products“ in this context is open to debate.
  2. Cookies and similar software tracking devices will be subject to a requirement for greater transparency and anyone using them on a web site should provide information about them to subscribers or users and offer an opportunity to refuse them.
  3. There will be stronger rights for individual subscribers who will be able to decide whether or not they want to be listed in subscriber directories.  Subscribers must be given clear information about the directories and must be informed of any reverse search capabilities (which allow directory users to identify names/addresses by searching against numbers rather than the other way around).
  4. Value added services (eg location based advertising to mobiles) are now permitted.  Provided subscribers give their consent and are informed of the data processing implications there is no restriction on the type of services allowed.

The DTI has also invited comments on current regulations governing phone and fax marketing and whether existing rights to opt in or out of receipt of communications via such media should be reviewed.  It has also invited comments on whether the rights of corporate and individual subscribers should be harmonised in relation to direct marketing by phone, fax, email and SMS.  The DTI anticipates that these may be controversial areas in the consultation and responses are welcomed until 19 June 2003.  It is anticipated that the final implementing Regulations will come into force on 31 October 2003.

Bulletins are for general guidance only. Legal advice should be sought before taking action in relation to specific matters. Where reference is made to Court decisions facts referred to are those reported as found by the Court. Please note that past bulletins included in the Archive have not been updated by any subsequent changes in statute or case law.