Select Committee on European Scrutiny Seventh Report


COM(00) 385

Draft Directive of the European Parliament and of the Council concerning the processing of personal data and the protection of privacy in the electronic communications sector.

Legal base: Article 95 EC; co-decision; qualified majority voting
Department: Trade and Industry
Basis of consideration: Minister's letter of 22 June 2001
Previous Committee Report: HC 23-xxix (1999-2000), paragraph 14 (15 November 2000)
To be discussed in Council: 6-7 December 2001 Transport and Telecommunications Council
Committee's assessment: Politically important
Committee's decision: Cleared


18.1  This draft Directive is one of seven proposals for legislation that will form the new regulatory framework for electronic communications networks and services. They were anticipated in the Commission Communication on the results of the public consultation on the 1999 Communications Review which the Committee considered on 24 May and 19 July and which was debated in European Standing Committee C on 16 February 2000.[58]

The draft Directive

18.2  The aim of this proposal is to adapt and update the existing provisions in the Telecoms Data Protection Directive[59] to take account of new and foreseeable developments in electronic communications and services. This should ensure that the same service is regulated in an equivalent manner and that consumers benefit from the same level of protection, regardless of which technology is used to deliver it.

18.3  We first considered the proposal on 15 November,[60] when we noted that the then Minister for Small Business and E-Commerce (Patricia Hewitt) commented that the Government agreed with the Commission that advances in technology and services since the existing Directive was envisaged in 1992 needed to be taken into account. She added:

    "The clarifications in the proposal, particularly with respect to its applicability to e-mail, and the moves to put in place a harmonised EU-wide framework to provide protection from unsolicited electronic communications of all types, are welcomed, as is the clarification in relation to directories of e-mail addresses and mobile numbers."

18.4  Negotiations on the text began in the Working Group in April. In a letter dated 22 June, the Minister for E-Commerce and Competitiveness (Mr Douglas Alexander), told us that there had been progress in some areas, including the scope of new provisions allowing the use of traffic and location data to provide value-added services and revised rules on subscriber directories. However, some key issues remained to be resolved.

The Minister's letter

— Summary

18.5  In a letter dated 15 November, the Minister covers the progress of negotiations since June. He then sets out the terms of a compromise package on which the Presidency proposes to seek agreement at the forthcoming December Transport and Telecommunications Council. This links two key outstanding issues which have been subject to negotiation — the retention of data for law-enforcement purposes and the opt-in versus the opt-out approach to unsolicited commercial e-mail. As the two issues are being presented by the Presidency as inseparable, the Minister proposes to support the package, rather than run the "unacceptably great" risk of losing the data retention legislation. He asks us if we could lift the scrutiny reserve before the Council meets.

— Data retention for law-enforcement purposes

18.6  The Minister says:

    "The Transport and Telecommunications Council of 27-28 June agreed to amend the recitals to make it clear that the Directive does not prevent Member States from providing for the retention of traffic or location data for a limited period, in accordance with the general principles of Community law. However, while helpful, our legal advice is that this change is not as secure against potential challenge as the parallel amendment to Article 15 that the UK originally sought.

    "This issue has taken on added urgency since the events of 11 September, following which the Government decided to introduce national legislation to allow operators to retain traffic data for law-enforcement purposes. The UK raised this again at the Transport and Telecommunications Council of 15-16 October, and the issue was remitted to COREPER for further discussion.

    "On 13 November, the European Parliament finally delivered its first reading. This contained amendments to the relevant Article and recital of the Directive that we believe would actually rule out the possibility of data retention as well as limit case-by-case surveillance. These amendments are unacceptable to the UK as drafted, and we will press for our objections to be taken into account in the discussions that take place in and between the European Parliament and the Council at second reading."

— Unsolicited commercial e-mail (UCE)

    "The Council has also so far been unable to reach agreement on the Commission's proposal to introduce harmonised opt-in requirements for UCE, under which e-mails for promotional or advertising purposes could only be sent to individuals who had previously consented to this. The UK, France, Ireland and Luxembourg have argued that Member States should be allowed to choose between opt-in and opt-out regulation, the latter permitting individual users to register either on a case-by-case basis or in a central opt-out register if they do not want to receive UCE.

    "The European Parliament's first reading of the Directive accepted an amendment very similar to the kind of provision favoured by the UK, albeit with a harmonised opt-in regime for text messages to mobiles."

— The Presidency compromise package

18.7  The Minister says that, on 14 November, the Presidency proposed amending Article 15 of the Directive, as the UK had requested. This would fully meet the Government's objectives in relation to data retention. However, it had linked this to an agreement in the Council on the basis of a "soft" opt-in approach to unsolicited commercial e-mail. Under this approach there would only be an exception from harmonised opt-in for pre-existing business relations. "For example, an online trader would be able to send UCE to consumers who had previously purchased from its website but not to those who had not. New customers would have to opt-in."

18.8  The Presidency indicated that the two compromise texts were inseparable. The Minister comments:

    "The UK does not command a blocking minority of Member States on UCE. Furthermore, support for the package approach among Member States is strong but not certain. I therefore judge that it is appropriate to move away from the position that we have argued to date. While the approach adopted by the European Parliament is the closest to our own, I also believe that the risk to achieving our objective on data retention would be unacceptably great if we were not to accept the Presidency proposal on UCE. In itself, this would not be incompatible with the permission-based marketing increasingly exercised by much of the industry."

    "I therefore propose to support the Presidency proposals at the December Council and would be grateful if your Committee could lift its scrutiny reserve to enable me to do so."


18.9  Since the Presidency, anxious to secure agreement at the forthcoming Council, insists that the deal is a package, the Minister has no alternative, in the absence of a blocking minority on unsolicited commercial e-mail, to accepting it as a whole. Moreover, we accept that the need to achieve the UK's objectives on the provisions in this proposal on law-enforcement agencies' access to communications and traffic data should take precedence in this case over the Government's objectives on unsolicited commercial e-mail.

18.10  We therefore support the Minister's intentions and now clear the document.

58  (21189) 8330/00; see HC 23-xix (1999-2000), paragraph 7 (24 May 2000) and HC 23-xxv (1999-2000), paragraph 8 (19 July 2000). Official Report, European Standing Committee C, 16 February 2000. Back

59  Directive 97/66/EC; OJ No. L 24, 30.1.98, p.1. Back

60  (21561) 10962/00; see HC 23-xxix (1999-2000), paragraph 14 (15 November 2000). Back

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