Telecoms Package Lawful

This page analyzes the notion of lawful content, which has been demonstrated to be a way to introduce some bias, like the three-strikes approach and endangers actual Net Neutrality.

Statistics

Original Directives

In original directives amended by the Telecoms Package, the term "lawful" appears:

• Acces Directive 2002/19/EC: 0 times
• Authorisation Directive 2002/20/EC: 0 times
• Framework Directive 2002/21/EC: 0 times
• Universal Service Directive 2002/22/EC: 0 times
• Personal Data and Protection of Privacy Directive 2002/58/EC: 5 times

But when appearing in 2002/58/EC, the context is the following:

(11) Like Directive 95/46/EC, this Directive does not address issues
of protection of fundamental rights and freedoms related to
activities which are not governed by Community law. Therefore it does
not alter the existing balance between the individual's right to
privacy and the possibility for Member States to take the measures
referred to in Article 15(1) of this Directive, necessary for the
protection of public security, defence, State security (including the
economic well-being of the State when the activities relate to State
security matters) and the enforcement of criminal law. Consequently,
this Directive does not affect the ability of Member States to carry
out lawful interception of electronic communications, or take other
measures, if necessary for any of these purposes and in accordance
with the European Convention for the Protection of Human Rights and
Fundamental Freedoms, as interpreted by the rulings of the European
Court of Human Rights. Such measures must be appropriate, strictly
proportionate to the intended purpose and necessary within a
democratic society and should be subject to adequate safeguards in
accordance with the European Convention for the Protection of Human
Rights and Fundamental Freedoms.

(23) Confidentiality of communications should also be ensured in the
course of lawful business practice. Where necessary and legally
authorised, communications can be recorded for the purpose of
providing evidence of a commercial transaction. Directive 95/46/EC
applies to such processing. Parties to the communications should be
informed prior to the recording about the recording, its purpose and
the duration of its storage. The recorded communication should be
erased as soon as possible and in any case at the latest by the end
of the period during which the transaction can be lawfully
challenged.

Article 5

Confidentiality of the communications

1. Member States shall 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. In particular, they shall prohibit
listening, tapping, storage or other kinds of interception or
surveillance of communications and the related traffic data by
persons other than users, without the consent of the users concerned,
except when legally authorised to do so in accordance with Article
15(1). This paragraph shall not prevent technical storage which is
necessary for the conveyance of a communication without prejudice to
the principle of confidentiality.

2. Paragraph 1 shall not affect any legally authorised recording of
communications and the related traffic data when carried out in the
course of lawful business practice for the purpose of providing
evidence of a commercial transaction or of any other business
communication.

3. Member States shall ensure that the use of electronic
communications networks to store information or to gain access to
information stored in the terminal equipment of a subscriber or user
is only allowed on condition that the subscriber or user concerned is
provided with clear and comprehensive information in accordance with
Directive 95/46/EC, inter alia about the purposes of the processing,
and is offered the right to refuse such processing by the data
controller. This shall not prevent any technical storage or access
for the sole purpose of carrying out or facilitating the transmission
of a communication over an electronic communications network, or as
strictly necessary in order to provide an information society service
explicitly requested by the subscriber or user.

Article 6

Traffic data

1. Traffic data relating to subscribers and users processed and
stored by the provider of a public communications network or publicly
available electronic communications service must be erased or made
anonymous when it is no longer needed for the purpose of the
transmission of a communication without prejudice to paragraphs 2, 3
and 5 of this Article and Article 15(1).

2. Traffic data necessary for the purposes of subscriber billing and
interconnection payments may be processed. Such processing is
permissible only up to the end of the period during which the bill
may lawfully be challenged or payment pursued.

3. For the purpose of marketing electronic communications services or
for the provision of value added services, the provider of a publicly
available electronic communications service may process the data
referred to in paragraph 1 to the extent and for the duration
necessary for such services or marketing, if the subscriber or user
to whom the data relate has given his/her consent. Users or
subscribers shall be given the possibility to withdraw their consent
for the processing of traffic data at any time.

4. The service provider must inform the subscriber or user of the
types of traffic data which are processed and of the duration of such
processing for the purposes mentioned in paragraph 2 and, prior to
obtaining consent, for the purposes mentioned in paragraph 3.

5. Processing of traffic data, in accordance with paragraphs 1, 2, 3
and 4, must be restricted to persons acting under the authority of
providers of the public communications networks and publicly
available electronic communications services handling billing or
traffic management, customer enquiries, fraud detection, marketing
electronic communications services or providing a value added
service, and must be restricted to what is necessary for the purposes
of such activities.

6. Paragraphs 1, 2, 3 and 5 shall apply without prejudice to the
possibility for competent bodies to be informed of traffic data in
conformity with applicable legislation with a view to settling
disputes, in particular interconnection or billing disputes.

That is: the term lawful refers either to interception of electronic communications, business practices or challenged transaction. Never to content exchanged by electronic communications, but rather to limit the exceptions to the protection of personal data.

Commission Proposals

In initial proposals from Commission in the Telecoms Package, the term "lawful" appears:

• COD/2007/0247 (amending 2002/19/EC, 2002/20/EC and 2002/21/EC: 2 times, in the following context:

Article 1 – point 8 – point e amending Directive 2002/21/EC Article 8 – paragraph 4 – point g (new)

(g) applying the principle that end-users should be able to access
and distribute any lawful content and use any lawful applications
and/or services of their choice.

• COD/2007/0248 (amending 2002/22/EC and 2002/58/EC: 4 times, in the following context:

Recital 14

(14) A competitive market should ensure that end-users are able to
access and distribute any lawful content and to use any lawful
applications and/or services of their choice, as stated in Article 8
of Directive 2002/21/EC. Given the increasing importance of
electronic communications for consumers and businesses, users should
in any case be fully informed of any restrictions and/or limitations
imposed on the use of electronic communications services by the
service and/or network provider. Where there is a lack of effective
competition, national regulatory authorities should use the remedies
available to them in Directive 2002/19/EC to ensure that users’
access to particular types of content or applications is not
unreasonably restricted.

Article 1 – point 12 amending Directive 2002/22/EC Article 20 – paragraph 5

5. Member States shall ensure that where contracts are concluded
between subscribers and undertakings providing electronic
communications services and/or networks, subscribers are clearly
informed in advance of the conclusion of a contract and regularly
thereafter of any limitations imposed by the provider on their
ability to access or distribute lawful content or run any lawful
applications and services of their choice.