INTRODUCTION
The right to respect for privacy in communications is afforded legal protection by Article 8 of the ECHR, which identifies a right to respect for correspondence. For these purposes correspondence and communications are synonymous.
In 1997 the EC introduced a specialized Directive on telecommunications privacy,152 which complemented and built upon the protections within the Data Protection Directive. The object and scope of this Directive was described in Article 1.1. in the following terms:
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This Directive provides for the harmonisation of the provisions of the Member States required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy, with respect to the processing of personal data in the telecommunications sector and to ensure the free movement of such data and of telecommunications equipment and services in the Community. |
The reason for this specialized Directive was explained in its recitals, with particular drivers including the following:
Advanced digital technologies introduced into the telecommunications sector ‘give rise to specific requirements concerning the protection of personal data and privacy of the user’ (Recital 3).
The successful cross-border development of information society services based on new telecommunications services such as ISDN and digital mobile is partly dependent upon the users being confident that their privacy will be respected (Recitals 3 and 4).
The protection of personal data is an integral component of the common market for telecommunications equipment, networks and services (Recital 5).
Harmonization of national laws on the protection of personal data is required ‘in order to avoid obstacles to the Internal Market for telecommunications’ (Recital 8).
The legitimate interests of subscribers to telecommunications services that are legal persons (companies) require protection (Recital 13).
The security of telecommunications networks needs to be ensured so as to guarantee confidentiality in communications (Recitals 15 and 16).
The 1997 Directive was a piece of sectoral law making, in the sense that it was targeted at one area only, telecommunications, marking a significant departure from the omnibus approach favoured by the Data Protection Directive. In 2002 the 1997 Directive was replaced by the Directive ‘concerning the processing of personal data and the protection of privacy in the electronic communications sector’ (DPEC).153