Privacy and confidentiality of communications in light of the proposal for a regulation on privacy and electronic communications

Abstract

Electronic communications data is essentially the ‘who, where, when and how’ of a communication between individuals. Data generated in a communication not only comprises of the identity of individuals involved, but also emanates from where and when a communication was sent and through which medium it was sent. With constant advancement in the way we communicate and the increased opportunities for processing of our personal data, it is no surprise that our fundamental rights to privacy and data protection have come to the fore in recent years. The European Commission’s digital reform package has been greatly debated over the last couple of years in the EU and beyond, with the adoption of the far-reaching GDPR being the most prominent measure recently implemented by the EU. When it comes to the regulation of privacy of electronic communications, the e-Privacy Directive is no longer deemed to be on par with the way communications technologies have evolved. In January 2017, the European Commission presented its Proposal for a Regulation on Privacy and Electronic Communications (‘the Proposal’). The latter was expected to accomplish a strengthened framework in relation to confidentiality of communications in comparison to the current e-Privacy Directive. This thesis argues that despite all good intentions, the Proposal has failed in presenting an appropriate legal instrument for upholding the fundamental rights to privacy and data protection in the context of the electronic communications sector.