UK: Privacy and Electronic Communications Directive

Last Updated: 4 October 2002

The EU finally replaced the existing Telecoms Directive with the new Privacy and Electronic Communications Directive (Directive Concerning the Processing of Personal Data and the Protection of Privacy in the Electronic Communications Sector 2002/58/EC) on 31 July of this year. The new Directive contains some controversial provisions that will affect cookies, spam and data retention. EU Member States are required to pass domestic legislation implementing the new Directive by 31 October 2003.


The existing Telecoms Directive was passed in 1997 and does not specifically address the use of cookies or other software devices that can be used to monitor the browsing habits of internet users. Although it does regulate direct marketing by fax and telephone it does not specifically deal with more modern forms of direct marketing via emails and mobile phone text messages. The aim of the new Privacy and Electronic Communications Directive is to provide technology neutral legislation that is applicable to all types of current electronic communications.

The passing of the Directive completes the ‘telecoms package’, which is a set of interlinked new Directives from the EU which will establish a new regulatory framework for communications services. Although the European Commission’s explanatory note to the original proposal stated the new Directive was not intended to create major changes to the existing Telecoms Directive it will in fact have major implications for business.

What has changed?

At its simplest, a cookie enables a web site to "recognise" a repeat visitor to that website. For this reason, cookies have been described as giving web sites "memory". They are used by the majority of websites to both customise the presentation of the website for individual users and also to collect information to build user profiles.

Cookies are to be permitted under the new Directive provided that recipients are informed of the purposes for which the information collected will be processed and recipients are also given a chance of opting-out of receiving cookies. The Directive provides some guidance on acceptable methods for giving information, offering a right to refuse and requesting consent. The general rule of thumb is that it must be user friendly. The guidance does permit some websites to refuse access without the well-informed acceptance of a cookie or similar device. Information and the right to refuse may be offered once for the use of various devices to be installed on a user’s terminal equipment during the same connection and also for any future connections.

The impact of the new Directive on direct marketing by email depends on whether the recipient is an existing customer. Existing customers can be sent direct marketing emails without first obtaining the customer’s consent provided:

  • the customer’s email address has been obtained during the course of a sale of a product or service;
  • the email address was obtained in accordance with the Data Protection Directive;
  • the direct marketing relates to similar products or services;
  • the direct marketing is by the same company as that which made the original sale/s; and
  • the existing customer must have been able to opt out (i.e. refuse) free of charge from receiving such emails at the time when the email address was collected and also on the occasion of each subsequent message.

If the recipient is not an existing customer the use of email (which includes SMS messages) for direct marketing will only be permitted if the recipient has given prior consent (opt-in).

For automated calling and automated fax machines the existing opt-in requirement will apply to all customers in relation to direct marketing.

Data retention
In order to protect the privacy of the users of communication networks (e.g. telephone systems and the internet) the Directive prohibits the interception and surveillance of the contents of communications and also limits the length of time that traffic data in relation to the communication can be retained. Those provisions are similar to the existing Telecoms Directive. In certain circumstances the new Directive permits Member States of the EU to pass laws that are inconsistent with those restrictions. The Member State must be able to justify the law as being “a necessary appropriate and proportionate measure within a democratic society to safeguard national security, (State security) defence, public security, the prevention, investigation, detection and prosecution of criminal offences or of unauthorised use of the electronic communication system.” The UK already has in place laws which provide the government with the ability to require the retention of data relating to users (see the article above in relation to RIPA – the Regulation of Investigatory Powers Act).


Companies engaged in electronic commerce will need to reconsider their current practices in light of the new Directive. Although it is not due to be implemented until 2003, the changes required are unlikely to be able to be effected overnight. In particular, consideration will need to be given to how customer data is collected and the information provided to customers on websites regarding the customer’s rights in relation to such collection. Direct marketing practices will also need to be reviewed and appropriate information included on websites to enable the organisation to maximise its ability to use the information it collects about its customers.

The impact of the new data retention provisions is not yet clear as the Directive merely provides the framework for the Member States of the EU to pass domestic data retention laws. It has however provided the most controversial aspect of the new Directive as the EU is currently debating whether there should be uniform data retention laws in light of terrorist fears following the attacks on the US on 11 September, 2001. Any data retention requirements do however have the potential to impose extra cost burdens on business.

Please click through for a copy of the Directive on privacy and electronic communications.

© Herbert Smith 2002

The content of this article does not constitute legal advice and should not be relied on as such. Specific advice should be sought about your specific circumstances.

For more information on this or other Herbert Smith publications, please email us.

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
Related Video
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.