EU adjusts its regulations on the protection of privacy for technological developments in the telecommunications sector

Aleksandra Auleytner Legal advisor Senior Associate in Domański Zakrzewski Palinka

The current state of harmonizing Polish law with EC telecommunications law

On October 1, 2003, the Act amending the Telecommunications Law (Journal of Laws of 2003, No. 113, Item 1070) entered into force. The main purpose of this Act is to harmonize Polish telecommunications law with Community law, in particular: the scope of the definition of public services; the terms and conditions for providing public services; the transferability of numbers; and access to the local loop. The amendments are also designed to promote greater competition in the telecoms sector and, consequently, a reduction in prices. The amendments cover the scope of EC Directives which, in a majority of cases, ceased to be binding on July 25, 2003 and were replaced by a new set of Community regulations on electronic communications, which were adopted in 2000.

Consequently the Ministry of Infrastructure is currently preparing yet another broad amendment to the Telecommunications Law, which will adjust Polish regulations so they comply with these new Directives. The six new Directives cover:

- Common regulatory frameworks for electronic communications networks and services (Directive 2002/21/EC);

- Access and interconnection of electronic communications networks and services (Directive 2002/19/EC);

- The authorization of electronic communications networks and services (Directive 2002/20/EC);

- Universal service and users' rights relating to electronic communications networks and services (Directive 2002/22/EC);

- The processing of personal data and the protection of the privacy in the electronic communications sector (Directive 2002/58/EC);

- Competition in the markets for electronic communications networks and services (Directive 2002/77/EC).

The set also includes Regulation (EC) No. 2887/2000 on unbundled access to the local loop, however, its provisions have already been introduced in amendments to the Telecommunications Law.

Directive 2002/58/EC on privacy and electronic communications

One of the above-mentioned directives - Directive 2002/58/EC on privacy and electronic communications - introduces several changes to current Community law on the processing of personal data and the protection of privacy in the electronic communications sector.

It replaces Directive 97/66/EC and focuses on the adjustment of EC regulations to take account of developments in electronic communications. The new Directive should be transposed into the legislation of Member States by 31 October 2003. As with the other five directives, its objective is to guarantee consumers and users the same level of protection, irrespective of the technology by which a service is delivered. Therefore, it replaces the references to telecommunications services and networks in the existing Directive 97/66/EC with references to electronic communications services and networks. In this way it covers privacy and data protection in all satellite and terrestrial networks (such as public switched telephone networks, cable TV and networks using internet protocol etc.).

Location data enabling geographic positioning

Directive 2002/58/EC introduces a new system for the protection of locational data, other than traffic data, which gives the exact geographic position of a users' equipment. Such data can be provided through a new kind of service offered by operators over cellular and satellite networks, for example satellite navigation. The locational data delivered in such services is far more precise than is required for the transmission of communications and is processed solely for the purpose of providing value added services. According to Art. 9 of Directive 2002/58/EC, such data may only be processed when it is made anonymous, or when users or subscribers consent to the extent and duration of processing necessary for the provision of the requested service. The service provider must inform users, prior to obtaining their consent, of the type of location data that will be processed, the purpose and duration of the processing and whether the data will be transmitted to a third party. If the user or subscriber consents, he can always withdraw it at any time or temporarily deny the processing of such data.

Directories of subscribers

The existence of directories of subscribers to fixed voice telephony services have always been justified on the basis that they provide a public benefit and are part of the provision of universal service. The subscribers to new electronic communications services, such as GSM and e-mail, generally do not wish to make public their telephone numbers and e-mail addresses. For this reason, Art. 12 of Directive 2002/58/EC provides that it should be a general right of subscribers (to whatever technology) to determine whether their personal data is included in a public directory, and if so, what data. They will also have the right to verify, correct or withdraw any data. Even if data is not included in a public subscriber directory, the process of verifying, correcting or withdrawing personal data should be free of charge. Art. 12 of Directive 2002/58/EC in a way reverses the current situation where the subscribers' listing is, by default, in a public directory.

Unsolicited communications

Directive 2002/58/EC requires that automated calling systems, fax machines or e- mails can only be used for direct marketing when subscribers have given their prior consent. The current Directive 97/66/EC grants protection only against unsolicited calls for direct marketing purposes. The term "call" was linked in the legislation of Member States mainly with voice telephony calls. Taking into account new technological developments, the European Commission wished to extend protection against unsolicited direct marketing to new forms of electronic communications.

Directive 2002/58/EC has already been partially incorporated to the Polish legal system by the Law of 18 July 2002, on the provision of electronic services. Poland was one of the first countries to attempt to harmonize its legislation with the provisions of the Directive. Poland's attempt, however, has been seen as a failure by commentators, who believe that the Directive 2002/58/EC, because of its subject, should have been incorporated to Telecommunications Law and not the law governing electronic commerce.