UK: Privacy Protection In Electronic Communications

Last Updated: 5 July 2001

With the release of a proposal by the European Parliament and the Council on 12 July 2000 to issue a directive concerning the processing of personal data and the protection of privacy in the electronic communications sector ('the draft Directive'), the Department of Trade and Industry ('DTI') has called for a consultation process to work out a UK response to the now on going negotiations on the draft Directive.

We at Kaltons certainly intend to participate in that consultation process and we would welcome any feedback from readers which would assist us in that process. First, however, we would like to outline the salient features of the draft Directive itself before turning to our contribution to the consultation process at a later date.

At the heart of the draft Directive is the intention to ensure that the content of electronic (as with all other types) of communications are not kept or stored and used by any person and that those who use electronic communications are not physically located through their use of such means, except with their consent or where emergency and national security reasons require otherwise. It also proposes to ban e-mail 'spam' throughout the EU.

Confidentiality Of Communications

The draft Directive - which is in fact intended to replace Directive 97/66/EC (the basis for the UK Data Protection Act 1998) and must be read together with it for the moment – requires member states to 'ensure the confidentiality of communications and the related traffic data by means of a public communications network and publicly available electronic communications services, through national legislation'. It is specifically targetted at the tapping and intercepting of such communications. It requires providers of publicly available communications services to provide for the security of their services and contemplates compensation for losses suffered if such security is not provided or where it fails.

Application & Definition

The primary object of the draft Directive is to create rules which are "technology neutral": in that communications by electronic means should be treated the same as communications by any other means. Thus consumers should get the same high level of privacy protection immaterial of the mode in which their services are delivered.

The draft Directive is to apply to all 'electronic communications services and networks'. This is an update of the pre-existing definition under Directive 97/66/EC and is intended to cover all different types of transmission services for electronic communications immaterial of the technology used. To buttress further clarity of understanding, four more definitions are proposed:

  • "calls" are defined as connections 'established by means of a publicly available telephone
  • "communications" are defined as 'any information exchanged or transmitted between finite number of parties by means of publicly available electronic communications service'.
  • "traffic date" is defined as 'any data processed in the course of or for the purpose of the transmission of a communication over an electronic network'
  • "location data" is defined as 'any data processed in an electronic communications network indicating the geographic position of the terminal equipment of a user of a publicly available electronic communications service'

Location Data

It is well known that it is possible to pinpoint by satellite the exact physical location of any person who uses a mobile phone. This can be done even when the mobile is not being used provided it is left on. The data which allows this is available to every mobile phone service provider to process. Such technology is implicit in the way electronic road location maps and telematic services providing road traffic information and guidance to drivers work. The good that can come out of such information is clearly manifest. For example, precise location data can allow emergency services to send quick assistance to users in trouble.

However, what of the need to ensure data protection and privacy protection? The question is whether such providers of services should be allowed to use such data at their own discretion without the consent of the user. Clearly the answer is in the negative and it has been so for quite a while now: this principle being embedded under Directive 97/66/EC already. The draft Directive strengthens this position by providing that such data may only be used with the consent of the subscribers. In this regard, it requires that subscribers be provided with a simple means of temporarily denying the processing of their location data. Obvious exceptions will be made in situations requiring emergency services, public and national security considerations and criminal investigations.

Traffic Data

Traffic data refers to any data processed in the course of or for the purpose of the transmission of a communication over an electronic network. The draft Directive envisages correctly that such data will be and, indeed is being, used by service providers to provide value added services. While there is nothing sinister or wrong with this, it is clear that such data should only be used with the consent of the subscriber. Moreover, it is proposed under the draft Directive that subscribers should be fully informed about the type of data which is being processed and the purposes for which this is being done. Accordingly, a positive duty to inform the subscriber of the personal data which is being collected is proposed.

Directories Of Subscribers

Under Directive 97/66/EC it was declared that the traditional default directories of subscribers for fixed voice telephony services was justified in view of the public interest. However, such has not been the case for mobile phone and e-mail subscribers who have preferred to remain anonymous. Hence, the draft Directive has proposed that subscribers of electronic communications services and networks be given the right to determine whether they wish to be listed in a public directory and the sort of data they prefer to have appended. It is also proposed that a duty be imposed on providers to inform subscribers of the purposes of use of personal data and obtain the consent of subscribers before use of such data.

Unsolicited Communications

This is likely to prove to be the most contentious of the various proposals under the draft Directive, at least in the UK. The draft article 13 proposes the granting of a right to all subscribers to refuse unsolicited communications for direct marketing purposes in respect of all forms of electronic communications (and not merely to voice telephony calls as under Directive 97/66/EC). This will include e-mail or other new forms of communications. E-mail for direct marketing purposes, in other words "spamming" will be prohibited and will be treated the same as spamming via faxes.

Apparently, four EU countries have already banned unsolicited commercial e-mail or spam. In other words, they have chosen the 'opt-in' system, i.e., subscribers request for commercial e-mails to be sent to them, but otherwise there is a prohibition against unsolicited commercial e-mail. However, the regime currently in operation in the UK (and most other EU countries) allows for the so-called 'opt-out' system: that is to say that it falls on the subscriber to indicate that he does not wish to receive any e-mail for direct marketing purposes and in that sense 'opts-out'. The problem that could arise in these circumstances, according to the explanatory notes to the draft Directive is that: 'Direct marketers in opt-in may not target e-mail addresses within their own country but they can still continue to send unsolicited commercial e-mail to countries with an opt-out system.' The draft Directive's proposed solution to this problem is the introduction of a harmonised opt-in approach.


Most of the proposals in the draft Directive are sound and attempt to catch up with the galloping strides of technological advancement. It is likely that most of them will be accepted in the UK and will be implemented by the second half of 2003. However, in respect of whether the UK should go along with the draft Directive's proposal of a universal 'opt-in' system in respect of unsolicited e-mail, there is likely to be divergent views. Our feeling at Kaltons is that the DTI will move towards the universal 'opt-in' system. Accordingly, our advice for the time being to those engaged in direct marketing is to look carefully at their websites to ensure that if (probably, when) the portentous universal 'opt-in' system arrives, websites and business strategies are modified accordingly. We have some ideas on how this might be done and are available to discuss it with those likely to be affected.

As this may well become law in the UK, companies may wish to consider taking a proactive stance by adopting such a policy early, thus maximising the size of their "legal" database well in advance.

The contents of this site are intended to be informative and interesting but by their very nature are general. You are strongly advised to seek independent advice on any problem you may have as we cannot accept responsibility for any loss arising from reliance on anything set out on the site, even errors or omissions.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.