Data Protection & Electronic Communications Paul Van den Bulck. Lawyer at the Brussels Bar Lecturer at the University of Strasbourg Assistant at the University of Brussels. Brussels 23 March 2004. WWW.ULYS.NET [email protected] European Framework Data Protection General:
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Data Protection & Electronic Communications Paul Van den Bulck
Lawyer at the Brussels Bar
Lecturer at the University of Strasbourg
Assistant at the University of Brussels
23 March 2004
European Framework Data Protection
Directive 95/46 on protection of personal data
Directive 2002/58 on privacy and electronic communications
Protection of personal data
General data protection principles
Online and offline
Public & private networks
Privacy & electronic communications
(e.g., cookies, spam)
9 Principles of Data protection
Member States shall prohibit the processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, and the processing of data concerning health or sex life.
Processing of personal data
Information concerning a data subject
identifiable natural person
Direct or indirect
Controller (EIC) or third party
Legal entity: SME?
IP address? [email protected]?
Data must be:
fairly and lawfully processed;
processed for specified, detailed and legitimate purposes;
adequate, relevant and not excessive;
not kept longer than necessary;
processed in accordance with the data subject's rights;
Secure and remain confidential;
not transferred to countries without adequate protection (outside EU);
Processing activities « must » be notified to the supervisory authority.
The name and address of the controller and processor (contract)
Purposes of the processing activity
The kind of data processed: « sensitive data »
The means to collect and process data (cf. cookies)
Inform the data subject on his/her rights and the way he/she can exercise them
The technical and organizational measures adopted to ensure the secure and confidential character
Reference to general information on data protection legislation, e.g., FAQ, or the contact details privacy officer ([email protected])
Processing « shall mean any operation … whether or not by automatic means, such as collection, recording, organization, storage, disclosure by transmission, dissemination or otherwise making available, etc. »
Means of collection:
Data subject is aware,e.g., webform
Data subject is not aware, e.g., spy ware
Broad an open notion of « processing » includes « disclosure by transmission, dissemination or otherwise making available»
Must be careful if you disclose personal information in a newsletter or on your website, e.g., personal contact details
Lindqvist case (Sweden –European Court of Justice (2003))
Directive 2002/58/EC on privacy and electronic communication
One of the Directives of the new « Telecom Package »
Update of Directive97/66 on privacy and telecommunications
Articulation with general framework
« 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. »
Public networks: no private or corporate networks
« Individual » communication: no broadcasting
Scope is not always very clear & distinction sometimes too academic.
Includes:protection of the legitimate interests of subscribers who are legal persons (SME).
Contents: clarification of some principles
Cookies, spy ware
Security and confidentiality
Traffic & location data
Directories of subscribers, e.g., yellow pages
2002/58 (art 6)
Traffic data relating to subscribers… must be erased or made anonymous when it is no longer needed for the purpose of the transmission of a communication
95/46 (art 6 (e))
kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the data were collected or for which they are further processed.
I am the manager of a Belgium EIC and
to facilitate the navigation on my site, I consider
to install a cookies on the PC of the visitors.
This way, I can display my site in the official
language of their place of establishment (SME)
or residence (German, Dutch French).
« However, such devices, for instance so-called "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 on-line transactions.
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 users are
provided with clear and precise information in accordance with
Directive 95/46/EC about the purposes of cookies or similar devices so
as to ensure that users are made aware of information being placed on
the terminal equipment they are using. Users should have the
opportunity to refuse to have a cookie or similar device stored on their
terminal equipment (recital 25 of Directive 2002/58/EC) »