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CHAPTER I
GENERAL PROVISIONS
Article 1 – Subject matter
Article 1
EU-Commision
EU-Parliament
Council
Directive 2002/58/EC4
1.This Regulation lays down rules regarding the protection of fundamental rights and freedoms of natural and legal persons in the provision and use of electronic communications services, and in particular, the rights to respect for private life and communications and the protection of natural persons with regard to the processing of personal data.
– unverändert / unchanged –
1. This Regulation lays down rules regarding the protection of fundamental rights and freedoms of natural and legal persons in the provision and use of electronic communications services, and in particular, the rights to respect for private life and communications and the protection of natural persons with regard to the processing of personal data.
1. This Directive harmonises the provisions of the Member States required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy, with respect to the processing of personal data in the electronic communication sector and to ensure the free movement of such data and of electronic communication equipment and services in the Community.
1a. This Regulation lays down rules regarding the protection of the fundamental rights and freedoms of legal persons in the provision and use of the electronic communications services, and in particular their rights to respect of communications.
2.This Regulation ensures free movement of electronic communications data and electronic communications services within the Union, which shall be neither restricted nor prohibited for reasons related to the respect for the private life and communications of natural and legal persons and the protection of natural persons with regard to the processing of personal data
– unverändert / unchanged –
The free movement of electronic communications data and electronic communications services within the Union shall be neither restricted nor prohibited for reasons related to the respect for the private life and communications of natural persons and the protection of natural persons with regard to the processing of personal data, and for protection of communications of legal persons.
3.The provisions of this Regulation particularise and complement Regulation (EU) 2016/679 by laying down specific rules for the purposes mentioned in paragraphs 1 and 2.
– unverändert / unchanged –
3. The provisions of this Regulation particularise and complement Regulation (EU) 2016/679 by laying down specific rules for the purposes mentioned in paragraphs 1 to 2.
2. The provisions of this Directive particularise and complement Directive 95/46/EC for the purposes mentioned in paragraph 1. Moreover, they provide for protection of the legitimate interests of subscribers who are legal persons.
Article 2 – Material Scope
1. This Regulation applies to
1. This Regulation applies to:
1. This Regulation applies to:
the processing of electronic communications data carried out in connection with the provision and the use of electronic communications services and to information related to the terminal equipment of end-users.
(a) the processing of electronic communications data carried out in connection with the provision and the use of electronic communications services, irrespective of whether a payment is required;
(b) the processing of information related to or processed by the terminal equipment of end-users;
(c) the placing on the market of software permitting electronic communications including the retrieval and presentation of information on the Internet
(d) the provision of publicly available directories of users of electronic communications;
(e) the sending of direct marketing electronic communications to end-users.
(a) the processing of electronic communications content and of electronic communications metadata carried out in connection with the provision and the use of electronic communications services;
(b) end-users’ terminal equipment information.
(c) the offering of a publicly available directory of end-users of electronic communications services; (d) the sending of direct marketing communications to end-users.
2. This Regulation does not apply to:
(a) activities which fall outside the scope of Union law;
(b) activities of the Member States which fall within the scope of Chapter 2 of Title V of the Treaty on European Union;
(c) electronic communications services which are not publicly available;
(d) activities of competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security;
– unverändert / unchanged –
(a) activities, which fall outside the scope of Union law, and in any event measures, processing activities and operations concerning national security and defence, regardless of who is carrying out those activities whether it is a public authority or a private operator acting at the request of a public authority;
(b) activities of the Member States which fall within the scope of Chapter 2 of Title V of the Treaty on European Union;
(c) electronic communications services which are not publicly available;
(d) activities, including data processing activities, of competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security;
(e) electronic communications data processed after receipt by the end-user concerned,
3. This Directive shall not apply to activities which fall outside the scope of the Treaty establishing the European Community, such as those covered by Titles V and VI of the Treaty on European Union, and in any case to activities concerning public security, defence, State security (including the economic well-being of the State when the activities relate to State security matters) and the activities of the State in areas of criminal law.
3.The processing of electronic communications data by the Union institutions, bodies, offices and agencies is governed by Regulation (EU) 00/0000 [new Regulation replacing Regulation 45/2001].
– vergessen? – forgotten? –
4.This Regulation shall be without prejudice to the application of Directive 2000/31/EC, in particular of the liability rules of intermediary service providers in Articles 12 to 15 of that Directive.
5.This Regulation shall be without prejudice to the provisions of Directive 2014/53/EU.
Article 3 – Territorial scope and representative
Article 3
1.This Regulation applies to:
(a) the provision of electronic communications services to end-users in the Union, irrespective of whether a payment of the end-user is required;
(a) the offering of electronic communications services, software, publicly available directories, or direct marketing electronic communications to end-users in the Union, irrespective of whether a payment of the end-user is required;
(a) the provision of electronic communications services to end-users who are in the Union,
1. This Directive shall apply to the processing of personal data in connection with the provision of publicly available electronic communications services in public communications networks in the Community.
(aa) the processing of electronic communications content and of electronic communications metadata of end-users who are in the Union;
(b) the use of such services;
(b) the activities referred to in Article 2 that are provided from the territory of the Union;
– gelöscht / deleted –
(c) the protection of information related to the terminal equipment of end-users located in the Union.
(c) the processing of information related to or processed by the terminal equipment of end-users that is in the Union.
(c) the protection of terminal equipment information of end-users who are in the Union.
(cb) the offering of publicly available directories of end-users of electronic communications services who are in the Union;
(cc) the sending of direct marketing communications to end-users who are in the Union.
2. Where the provider of an electronic communications service is not established in the Union it shall designate in writing a representative in the Union.
2. Where the provider of an electronic communications service, provider of software permitting electronic communications, a person processing information related to or processed by the terminal equipment of users or end-users, a provider of a publicly available directory, or a person using electronic communications services to transmit direct marketing communications is not established in the Union, it shall designate in writing a representative in the Union.
2. Where the provider of an electronic communications service, the provider of a publicly available directory, or a person using electronic communications services to send direct marketing communications, or a person using processing and storage capabilities or collecting information processed by or emitted by or stored in the end-users’ terminal equipment is not established in the Union it shall designate in writing, within one month from the start of its activities, a representative in the Union and communicate it to the competent Supervisory Authority.
2a. The requirements laid down in paragraph 2 shall not apply if activities listed in paragraph 1 are occasional and are unlikely to result in a risk to the fundamental rights of end-users taking into account the nature, context, scope and purpose of those activities.
3. The representative shall be established in one of the Member States where the end-users of such electronic communications services are located.
4. The representative shall have the power to answer questions and provide information in addition to or instead of the provider it represents, in particular, to supervisory authorities, and end-users, on all issues related to processing electronic communications data for the purposes of ensuring compliance with this Regulation.
4. The representative shall have the power to answer questions and provide information in addition to or instead of the provider it represents, in particular, to supervisory authorities, courts, and end-users, on all issues related to the activities referred to in Article 2 for the purposes of ensuring compliance with this Regulation.
4. The representative shall be mandated by the provider or person it represents to be addressed in addition to or instead of the provider it represents, in particular, to supervisory authorities, and end-users, on all issues related to processing electronic communications data for the purposes of ensuring compliance with this Regulation.
5. The designation of a representative pursuant to paragraph 2 shall be without prejudice to legal actions, which could be initiated against a natural or legal person who processes electronic communications data in connection with the provision of electronic communications services from outside the Union to end-users in the Union.
5. The designation of a representative pursuant to paragraph 2 shall be without prejudice to legal actions, which could be initiated against a natural or legal person who undertakes the activities referred to in Article 2 from outside the Union.
5. The designation of a representative pursuant to paragraph 2 shall be without prejudice to legal actions, which could be initiated against the provider or person it represents.
6. This Regulation applies to the processing of personal data by a provider not established in the Union, but in a place where Member State law applies by virtue of public international law.
Article 4 – Definitions
1. For the purposes of this Regulation, following definitions shall apply:
(a) the definitions in Regulation (EU) 2016/679;
Save as otherwise provided, the definitions in Directive 95/46/EC and in Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive)(8) shall apply.
(b) the definitions of ‘electronic communications network’, ‘electronic communications service’, ‘interpersonal communications service’, ‘number-based interpersonal communications service’, ‘number-independent interpersonal communications service’, ‘end-user’ and ‘call’ in points (1), (4), (5), (6), (7), (14) and (21) respectively of Article 2 of [Directive establishing the European Electronic Communications Code];
(b) the definition of ‘call’ in point (21) of Article 2 of [Directive establishing the European Electronic Communications Code];
(b) the definitions of ‘electronic communications network’, ‘electronic communications service’, ‘interpersonal communications service’, ‘number-based interpersonal communications service’, ‘number-independent interpersonal communications service’, ‘end-user’ and ‘call’ in paragraphs (1), (4), (5), (6), (7), (14) and (31) respectively of Article 2 of Directive (EU) 2018/1972;
(c) the definition of ‘terminal equipment’ in point (1) of Article 1 of Commission Directive 2008/63/EC
– unverändert / unchanged –
(c) the definition of ‘terminal equipment’ in Article 1 (1) of Commission Directive 2008/63/EC;
Keine inhaltliche Änderung
(d) the definition of ‘information society service’ in point (b) of Article 1 (1) of Directive (EU) 2015/1535.
2. For the purposes of point (b) of paragraph 1, the definition of ‘interpersonal communications service’ shall include services which enable interpersonal and interactive communication merely as a minor ancillary feature that is intrinsically linked to another service.
– gelöscht / deleted –
2. For the purposes of this Regulation, the definition of ‘interpersonal communications service’ referred to in point (b) of paragraph 1 shall include services which enable interpersonal and interactive communication merely as a minor ancillary feature that is intrinsically linked to another service.
2a. For the purposes of this Regulation, the definition of ‘processing’ referred to in Article 4 (2) of Regulation 2016/679 shall not be limited to processing of personal data.
3. In addition, for the purposes of this Regulation the following definitions shall apply:
(a) ‘electronic communications data’ means electronic communications content and electronic communications metadata;
(-a) ‘electronic communications network’ means a transmission system, whether or not based on a permanent infrastructure or centralised administration capacity, and, where applicable, switching or routing equipment and other resources, including network elements which are not active, which permit the conveyance of signals by wire, radio, optical or other electromagnetic means, including satellite networks, fixed (circuit – and packet – switched including Internet) and mobile terrestrial networks, electricity cable systems, to the extent that they are used for the purpose of transmitting signals, networks used for radio and television broadcasting, and cable television networks, irrespective of the type of information conveyed;
(-aa) ‘electronic communications service’ means a service provided via electronic communications networks, whether for remuneration or not, which encompasses one or more of the following: an ‘internet access service’ as defined in Article 2(2) or Regulation (EU) 2015/2120; an interpersonal communications service; a service consisting wholly or mainly in the conveyance of the signals, such as a transmission service used for the provision of a machine-to-machine service and for broadcasting, but excludes information conveyed as part of a broadcasting service to the public over an electronic communications network or service except to the extent that the information can be related to the identifiable end-user receiving the information; it also includes services which are not publicly available, but provide access to a publicly available electronic communications network;
(-ab) ‘interpersonal communications service’ means a service, whether provided for remuneration or not, that enables direct interpersonal and interactive exchange of information between a finite number of persons whereby the persons initiating or participating in the communication determine the recipient(s);
(-ac) ‘number-based interpersonal communications service’ means an interpersonal communications service which connects to the public switched telephone network, either by means of assigned numbering resources, i.e. number or numbers in national or international telephone numbering plans, or by enabling communication with a number or numbers in national or international telephone numbering plans;
(-ad) ‘number-independent interpersonal communications service’ means an interpersonal communications service which does not connect with the public switched telephone network, either by means of assigned numbering resources, i.e. a number or numbers in national or international telephone numbering plans, or by enabling communication with a number or numbers in national or international telephone numbering plans;
(-ae) ‘end-user’ means a legal entity or a natural person using or requesting a publicly available electronic communications service;
(-af) ‘user’ means any natural person using a publicly available electronic communications service, for private or business purposes, without necessarily having subscribed to this service;
(d) “communication” means any information exchanged or conveyed between a finite number of parties by means of a publicly available electronic communications service. This does not include any information conveyed as part of a broadcasting service to the public over an electronic communications network except to the extent that the information can be related to the identifiable subscriber or user receiving the information;
(a) “user” means any natural person using a publicly available electronic communications service, for private or business purposes, without necessarily having subscribed to this service;
(b) ‘electronic communications content’ means the content exchanged by means of electronic communications services, such as text, voice, videos, images, and sound;
(b) ‘electronic communications content’ means the content transmitted, distributed or exchanged by means of electronic communications services, such as text, voice, videos, images, and sound. Where metadata of other electronic communications services or protocols are transmitted, distributed or exchanged by using the respective service, they shall be considered electronic communications content for the respective service;
– unverändert / unchanged –
(c) ‘electronic communications metadata’ means data processed in an electronic communications network for the purposes of transmitting, distributing or exchanging electronic communications content; including data used to trace and identify the source and destination of a communication, data on the location of the device generated in the context of providing electronic communications services, and the date, time, duration and the type of communication;
(c) ‘electronic communications metadata’ means data processed in an electronic communications network for the purposes of transmitting, distributing or exchanging electronic communications content ; including data used to trace and identify the source and destination of a communication, data on the location of the terminal equipment processed in the context of providing electronic communications services, and the date, time, duration and the type of communication;
(c) ‘electronic communications metadata’ means data processed by means of electronic communications services for the purposes of transmitting, distributing or exchanging electronic communications content; including data used to trace and identify the source and destination of a communication, data on the location of the device generated in the context of providing electronic communications services, and the date, time, duration and the type of communication;
(b) “traffic data” means any data processed for the purpose of the conveyance of a communication on an electronic communications network or for the billing thereof;
(c) “location data” means any data processed in an electronic communications network, indicating the geographic position of the terminal equipment of a user of a publicly available electronic communications service;
(d)‘publicly available directory’ means a directory of end-users of electronic communications services, whether in printed or electronic form, which is published or made available to the public or to a section of the public, including by means of a directory enquiry service;
– unverändert / unchanged –
(d) ‘publicly available directory’ means a directory of end-users of number-based interpersonal communications services, whether in printed or electronic form, which is published or made available to the public or to a section of the public, including by means of a directory enquiry service and the main function of which is to enable identification of such end-users;
(e)‘electronic mail’ means any electronic message containing information such as text, voice, video, sound or image sent over an electronic communications network which can be stored in the network or in related computing facilities, or in the terminal equipment of its recipient;
– unverändert / unchanged –
(e) ‘electronic message’ means any message containing information such as text, voice, video, sound or image sent over an electronic communications network which can be stored in the network or in related computing facilities, or in the terminal equipment of its recipient, including e-mail, SMS, MMS and functionally equivalent applications and techniques;
(h) “electronic mail” means any text, voice, sound or image message sent over a public communications network which can be stored in the network or in the recipient’s terminal equipment until it is collected by the recipient.
(f) ‘direct marketing communications’ means any form of advertising, whether written or oral, sent to one or more identified or identifiable end-users of electronic communications services, including the use of automated calling and communication systems with or without human interaction, electronic mail, SMS, etc.;
(f) ‘direct marketing communications’ means any form of advertising, whether in written, oral or video format, sent, served or presented to one or more identified or identifiable end-users of electronic communications services, including the use of automated calling and communications systems with or without human interaction, electronic mail, SMS, fax machines etc.;
(f) ‘direct marketing communications’ means any form of advertising, whether written or oral, sent via a publicly available electronic communications service directly to one or more specific end-users, including the placing of voice-to-voice calls, the use of automated calling and communication systems with or without human interaction, electronic message etc.;
(g) ‘direct marketing voice-to-voice calls’ means live calls, which do not entail the use of automated calling systems and communication systems;
(g) ‘direct marketing voice-to-voice calls’ means live calls, which do not entail the use of automated calling systems and communications systems, including calls made using automated calling and communications systems which connect the called person to an individual;
– unverändert / unchanged –
(h) ‘automated calling and communication systems’ means systems capable of automatically initiating calls to one or more recipients in accordance with instructions set for that system, and transmitting sounds which are not live speech, including calls made using automated calling and communication systems which connect the called person to an individual.
(h) ‘automated calling and communications systems’ means systems capable of automatically initiating calls to one or more recipients in accordance with instructions set for that system, and transmitting sounds which are not live speech.
– unverändert / unchanged –
(i) ‘direct marketing calls’ means direct marketing voice-to-voice calls and calls made via automated calling and communication systems for the purpose of direct marketing.
(j) ‘location data’ means data processed by means of an electronic communications network or service, indicating the geographic position of the terminal equipment of a user of a publicly available electronic communications service;
Article 4a – Consent
1. The provisions for consent provided for under Regulation (EU) 2016/679/EU shall apply to natural persons and, mutatis mutandis, to legal persons.
1a. Paragraph 1 is without prejudice to national legislation on determining the persons who are authorised to represent a legal person in any dealings with third parties or in legal proceedings.
2. Without prejudice to paragraph 1, where technically possible and feasible, for the purposes of point (b) of Article 8 (1), consent may be expressed by using the appropriate technical settings of a software application enabling access to the internet placed on the market permitting electronic communications, including the retrieval and presentation of information on the internet.
2aa. Consent directly expressed by an end-user in accordance with Paragraph (2) shall prevail over software settings. Any consent requested and given by an end-user to a service shall be directly implemented, without any further delay, by the applications of the end user’s terminal, including where the storage of information or the access of information already stored in the end-user’s terminal equipment is permitted.
2a. As far as the provider is not able to identify a data subject, the technical protocol showing that consent was given from the terminal equipment shall be sufficient to demonstrate the consent of the end-user according Article 8 (1) (b).
3. End-users who have consented to the processing of electronic communications data in accordance with this Regulation shall be reminded of the possibility to withdraw their consent at periodic intervals of [no longer than 12 months], as long as the processing continues, unless the end-user requests not to receive such reminders.
General Remarks
Inline Remarks