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Recitals

EU-Commision

EU-Parliament

Council

Directive 2002/58/EC4

(1)  Article 7 of the Charter of Fundamental Rights of the European Union (“the Charter”) protects the fundamental right of everyone to the respect for his or her private and family life, home and communications. Respect for the privacy of one’s communications is an essential dimension of this right. Confidentiality of electronic communications ensures that information exchanged between parties and the external elements of such communication, including when the information has been sent, from where, to whom, is not to be revealed to anyone other than to the parties involved in a communication. The principle of confidentiality should apply to current and future means of communication, including calls, internet access, instant messaging applications, e-mail, internet phone calls and personal messaging provided through social media.

(1)  Article 7 of the Charter of Fundamental Rights of the European Union (“the Charter”) protects the fundamental right of everyone to the respect for his or her private and family life, home and communications. Respect for the privacy of one’s communications is an essential dimension of this right. Confidentiality of electronic communications ensures that information exchanged between parties and the external elements of such communication, including when the information has been sent, from where, to whom, is not to be revealed to anyone other than to the communicating parties. The principle of confidentiality should apply to current and future means of communication, including calls, internet access, instant messaging applications, e-mail, internet phone calls and inter-personal messaging provided through social media. It should also apply when the confidentiality of electronic communications and the privacy of the physical environment converge, i.e. where terminal devices for electronic communications can also listen into their physical environment or use other input channels such as Bluetooth signalling or movement sensors.

(1) Article 7 of the Charter of Fundamental Rights of the European Union („the Charter“) protects the fundamental right of everyone to the respect for private and family life, home and communications. Respect for the confidentiality of one’s communications is an essential dimension of this right, applying both to natural and legal persons. Confidentiality of electronic communications ensures that information exchanged between parties and the external elements of such communication, including when the information has been sent, from where, to whom, is not to be revealed to anyone other than to the parties involved in a communication. The principle of confidentiality should apply to current and future means of communication, including calls, internet access, instant messaging applications, e-mail, internet phone calls and personal messaging provided through social media.

(2) This Directive seeks to respect the fundamental rights and observes the principles recognised in particular by the Charter of fundamental rights of the European Union. In particular, this Directive seeks to ensure full respect for the rights set out in Articles 7 and 8 of that Charter. (3) Confidentiality of communications is guaranteed in accordance with the international instruments relating to human rights, in particular the European Convention for the Protection of Human Rights and Fundamental Freedoms, and the constitutions of the Member States.

(2) The content of electronic communications may reveal highly sensitive information about the natural persons involved in the communication, from personal experiences and emotions to medical conditions, sexual preferences and political views, the disclosure of which could result in personal and social harm, economic loss or embarrassment. Similarly, metadata derived from electronic communications may also reveal very sensitive and personal information. These metadata includes the numbers called, the websites visited, geographical location, the time, date and duration when an individual made a call etc., allowing precise conclusions to be drawn regarding the private lives of the persons involved in the electronic communication, such as their social relationships, their habits and activities of everyday life, their interests, tastes etc.

Metadata can also be processed and analysed much easier than content, as it is already brought into a structured and standardised format. The protection of confidentiality of communications is an essential condition for the respect of other connected fundamental rights and freedoms, such as the protection of freedom of thought, conscience and religion, freedom of assembly, freedom of expression and information.

(2a) Regulation (EU) 2016/679 regulates the protection of personal data. This Regulation protects in addition the respect for private life and communications. The provisions of this Regulation particularise and complement the general rules on the protection of personal data laid down in Regulation (EU) 2016/679. This Regulation therefore does not lower the level of protection enjoyed by natural persons under Regulation (EU) 2016/679. The provisions particularise Regulation (EU) 2016/679 as regards personal data by translating its principles into specific rules. If no specific rules are established in this Regulation, Regulation (EU) 2016/679 should apply to any processing of data that qualify as personal data. The provisions complement Regulation (EU) 2016/679 by setting forth rules regarding subject matters that are not within the scope of Regulation (EU) 2016/679, such as the protection of the rights of end-users who are legal persons. Processing of electronic communications data by providers of electronic communications services and networks should only be permitted in accordance with this Regulation. This Regulation does not impose any obligations on the end-user End-users who are legal persons may have rights conferred by Regulation (EU) 2016/679 to the extent specifically required by this Regulation

(3) Electronic communications data may also reveal information concerning legal entities, such as business secrets or other sensitive information that has economic value. Therefore, the provisions of this Regulation should apply to both natural and legal persons. Furthermore, this Regulation should ensure that provisions of the Regulation (EU) 2016/679 of the European Parliament and of the Council 21 , also apply to end-users who are legal persons. This includes the definition of consent under Regulation (EU) 2016/679. When reference is made to consent by an end-user, including legal persons, this definition should apply. In addition, legal persons should have the same rights as end-users that are natural persons regarding the supervisory authorities; furthermore, supervisory authorities under this Regulation should also be responsible for monitoring the application of this Regulation regarding legal persons.

(3) Electronic communications data may also reveal information concerning legal entities, such as business secrets or other sensitive information that has economic value and the protection of which allows legal persons to conduct their business, supporting among other innovation. Therefore, the provisions of this Regulation should in principle apply to both natural and legal persons. Furthermore, this Regulation should ensure that, where necessary, provisions of the Regulation (EU) 2016/679 of the European Parliament and of the Council[1], also apply mutatis mutandis5 to end-users who are legal persons. This includes the definition of provisions on consent under Regulation (EU) 2016/679.

(17) For the purposes of this Directive, consent of a user or subscriber, regardless of whether the latter is a natural or a legal person, should have the same meaning as the data subject’s consent as defined and further specified in Directive 95/46/EC. Consent may be given by any appropriate method enabling a freely given specific and informed indication of the user’s wishes, including by ticking a box when visiting an Internet website.

(4) Pursuant to Article 8(1) of the Charter and Article 16(1) of the Treaty on the Functioning of the European Union, everyone has the right to the protection of personal data concerning him or her. Regulation (EU) 2016/679 lays down rules relating to the protection of natural persons with regard to the processing of personal data and rules relating to the free movement of personal data.

(1) Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data(4) requires Member States to ensure the rights and freedoms of natural persons with regard to the processing of personal data, and in particular their right to privacy, in order to ensure the free flow of personal data in the Community.

Electronic communications data may include personal data as defined in Regulation (EU) 2016/679.

Electronic communications data are generally personal data as defined in Regulation (EU) 2016/679.

– unverändert / unchanged – 

(5)  The provisions of this Regulation particularise and complement the general rules on the protection of personal data laid down in Regulation (EU) 2016/679 as regards electronic communications data that qualify as personal data. This Regulation therefore does not lower the level of protection enjoyed by natural persons under Regulation (EU) 2016/679.

(10) In the electronic communications sector, Directive 95/46/EC applies in particular to all matters concerning protection of fundamental rights and freedoms, which are not specifically covered by the provisions of this Directive, including the obligations on the controller and the rights of individuals. Directive 95/46/EC applies to non-public communications services.

Processing of electronic communications data by providers of electronic communications services should only be permitted in accordance with this Regulation.

On the contrary, it aims to provide additional and complementary safeguards take into account the need for additional protection as regards the confidentiality of communications. Processing of electronic communications data should only be permitted in accordance with, this Regulation.

– gelöscht / deleted – 

(21) Measures should be taken to prevent unauthorised access to communications in order to protect the confidentiality of communications, including both the contents and any data related to such communications, by means of public communications networks and publicly available electronic communications services. National legislation in some Member States only prohibits intentional unauthorised access to communications.

(6)  While the principles and main provisions of Directive 2002/58/EC of the European Parliament and of the Council22 remain generally sound, that Directive has not fully kept pace with the evolution of technological and market reality, resulting in an inconsistent or insufficient effective protection of privacy and confidentiality in relation to electronic communications. Those developments include the entrance on the market of electronic communications services that from a consumer perspective are substitutable to traditional services, but do not have to comply with the same set of rules.

(4) Directive 97/66/EC of the European Parliament and of the Council of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector(5) translated the principles set out in Directive 95/46/EC into specific rules for the telecommunications sector. Directive 97/66/EC has to be adapted to developments in the markets and technologies for electronic communications services in order to provide an equal level of protection of personal data and privacy for users of publicly available electronic communications services, regardless of the technologies used. That Directive should therefore be repealed and replaced by this Directive.

Another development concerns new techniques that allow for tracking of online behaviour of end-users, which are not covered by Directive 2002/58/EC. Directive 2002/58/EC should therefore be repealed and replaced by this Regulation.

Another development concerns new techniques that allow for tracking of users. Directive 2002/58/EC should therefore be repealed and replaced by this Regulation.

– unverändert / unchanged – 

(48) It is useful, in the field of application of this Directive, to draw on the experience of the Working Party on the Protection of Individuals with regard to the Processing of Personal Data composed of representatives of the supervisory authorities of the Member States, set up by Article 29 of Directive 95/46/EC.

(7)  The Member States should be allowed, within the limits of this Regulation, to maintain or introduce national provisions to further specify and clarify the application of the rules of this Regulation in order to ensure an effective application and interpretation of those rules. Therefore, the margin of discretion, which Member States have in this regard, should maintain a balance between the protection of private life and personal data and the free movement of electronic communications data.

(7)  The European Data Protection Board should, where necessary, issue guidance and opinions, within the limits of this Regulation, to maintain or introduce national provisions to further specify and clarify the application of the rules of this Regulation in order to ensure an effective application and interpretation of those rules. Cooperation and consistency between Member States, in particular between national Data Protection Authorities, is essential to maintain a balance between the protection of private life and personal data and the free movement of electronic communications data.

(7a) This Regulation does not apply to the protection of fundamental rights and freedoms related to 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 operations, whether it is a public authority or a private operator acting at the request of a public authority. 

(8)  This Regulation should apply to providers of electronic communications services, to providers of publicly available directories, and to software providers permitting electronic communications, including the retrieval and presentation of information on the internet.

(8) This Regulation should apply to providers of electronic communications services, and to providers of publicly available directories. 

This Regulation should also apply to natural and legal persons who use electronic communications services to send direct marketing commercial communications or collect information related to or stored in end-users’ terminal equipment.

This Regulation should also apply to natural and legal persons who use electronic communications services to send direct marketing commercial communications or collect information transmitted to, stored in, related to or processed by users’ terminal equipment.

This Regulation should also apply to natural and legal persons who use electronic communications services to send direct marketing commercial communications or make use of processing and storage capabilities of terminal equipment or collect information processed by or emitted by or stored in end-users’ terminal equipment.

(8aaa) Furthermore, this Regulation should apply regardless of whether the processing of electronic communications data or personal data of end-users who are in the Union takes place in the Union or not, or of whether the service provider or person processing such data is established or located in the Union or not. 

(8aa) Some end-users, for example providers of payment services or payment systems, process as recipients their electronic communications data for different purposes or request a third party to process their electronic communications data on their behalf. It is also important that end-users, including legal entities, have the possibility to take the necessary measures to secure their services, networks, employees and customers from security threats or incidents. Information security services may play an important role in ensuring the security of end-users‘ digital sphere. For example, an end-user as an information society service provider may process its electronic communications data, or may request a third party, such as a provider of security technologies and services, to process that end-user’s electronic communications data on its behalf, for purposes such as ensuring network and information security, including the prevention, monitoring and termination of fraud, unauthorised access and Distributed Denial of Service attacks, or facilitating efficient delivery of website content. Processing of their electronic communications data by the end-users concerned, or by a third party entrusted by the end-users concerned to process their electronic communications data after receipt on their behalf, is should not be covered by this Regulation. For the purpose of protecting the end-user’s terminal equipment processing upon receipt, including also just before receipt, by a third party entrusted should not be covered by this Regulation. 

(8a) This Regulation does not apply to the electronic communications data of deceased persons. Member States may provide for rules regarding the processing of electronic communications data of deceased persons. 

(9)  This Regulation should apply to electronic communications data processed in connection with the provision and use of electronic communications services in the Union, regardless of whether or not the processing takes place in the Union. Moreover, in order not to deprive end-users in the Union of effective protection, this Regulation should also apply to electronic communications data processed in connection with the provision of electronic communications services from outside the Union to end-users in the Union.

(9)  This Regulation should apply to electronic communications data processed in connection with the offering and use of electronic communications services in the Union, regardless of whether or not the processing takes place in the Union. Moreover, in order not to deprive end-users in the Union of effective protection, this Regulation should also apply to electronic communications data processed in connection with the provision of electronic communications services from outside the Union to end-users in the Union. This should be the case irrespective of whether the electronic communications are connected to a payment or not. For the purpose of this Regulation, where the provider of an electronic communications service is not established in the Union, it should designate, in writing, a representative in the Union.

– gelöscht / deleted – 

(10) Radio equipment and its software which is placed on the internal market in the Union, must comply with Directive 2014/53/EU of the European Parliament and of the Council 23 . This Regulation should not affect the applicability of any of the requirements of Directive 2014/53/EU nor the power of the Commission to adopt delegated acts pursuant to Directive 2014/53/EU requiring that specific categories or classes of radio equipment incorporate safeguards to ensure that personal data and privacy of end-users are protected.

(11)  The services used for communications purposes, and the technical means of their delivery, have evolved considerably.

End-users increasingly replace traditional voice telephony, text messages (SMS) and electronic mail conveyance services in favour of functionally equivalent online services such as Voice over IP, messaging services and web-based e-mail services. In order to ensure an effective and equal protection of end-users when using functionally equivalent services, this Regulation uses the definition of electronic communications services set forth in the [Directive of the European Parliament and of the Council establishing the European Electronic Communications Code]. That definition encompasses not only internet access services and services consisting wholly or partly in the conveyance of signals but also interpersonal communications services, which may or may not be number-based, such as for example, Voice over IP, messaging services and web-based e-mail services. The protection of confidentiality of communications is crucial also as regards interpersonal communications services that are ancillary to another service; therefore, such type of services also having a communication functionality should be covered by this Regulation.

End-users increasingly replace traditional voice telephony, text messages (SMS) and electronic mail conveyance services in favour of functionally equivalent online services such as Voice over IP, messaging services and web-based e-mail services, also known as “over-the-top-services” (OTTs). This Regulation aims at ensuring an effective and equal protection of end-users when using functionally equivalent services, so as to ensure the confidentiality of their communications, irrespective of the technological medium chosen. It does not only cover internet access services and services consisting wholly or partly in the conveyance of signals but also interpersonal communications services, which may or may not be number-based, such as for example, Voice over IP, messaging services and web-based e-mail services.

End-users increasingly replace traditional voice telephony, text messages (SMS) and electronic mail conveyance services in favour of functionally equivalent online services such as Voice over IP, messaging services and web-based e-mail services. In order to ensure an effective and equal protection of end-users when using functionally equivalent services, this Regulation uses the definition of electronic communications services set forth in the Directive (EU) 2018/1972. That definition encompasses not only internet access services and services consisting wholly or partly in the conveyance of signals but also interpersonal communications services, which may or may not be number-based, such as for example, Voice over IP, messaging services and web-based e-mail services.

(5) New advanced digital technologies are currently being introduced in public communications networks in the Community, which give rise to specific requirements concerning the protection of personal data and privacy of the user. The development of the information society is characterised by the introduction of new electronic communications services. Access to digital mobile networks has become available and affordable for a large public. These digital networks have large capacities and possibilities for processing personal data. The successful cross-border development of these services is partly dependent on the confidence of users that their privacy will not be at risk.

(6) The Internet is overturning traditional market structures by providing a common, global infrastructure for the delivery of a wide range of electronic communications services. Publicly available electronic communications services over the Internet open new possibilities for users but also new risks for their personal data and privacy.

(7) In the case of public communications networks, specific legal, regulatory and technical provisions should be made in order to protect fundamental rights and freedoms of natural persons and legitimate interests of legal persons, in particular with regard to the increasing capacity for automated storage and processing of data relating to subscribers and users.

(11a) The protection of confidentiality of communications is crucial also as regards interpersonal communications services that are ancillary to another service; therefore, the processing of electronic communications data in the context of the provision of such type of minor ancillary services should be covered by this Regulation.

(11aa) In all the circumstances where electronic communication is taking place between a finite, that is to say not potentially unlimited, number of end-users which is determined by the sender of the communications, e.g. any messaging application allowing two or more people to connect and communicate, such services constitute interpersonal communications services. Conversely, a communications channel does not constitute an interpersonal communications service when it does not enable direct interpersonal and interactive exchange of information via electronic communications networks between a finite number of persons, whereby the persons initiating or participating in the communication determine its recipient(s). This is for example the case when the entity providing the communications channel is at the same time a communicating party, such as a company that operates a communications channel for customer care that allows customers solely to communicate with the company in question. Also, where access to an electronic communications is available for anyone, e.g. communications in an electronic communications channel in online games which is open to all persons playing the game, such channel does not constitute an interpersonal communications feature. This reflects the end-users‘ expectations regarding the confidentiality of a service. 

(12)  Connected devices and machines increasingly communicate with each other by using electronic communications networks (Internet of Things). The transmission of machine-to-machine communications involves the conveyance of signals over a network and, hence, usually constitutes an electronic communications service. In order to ensure full protection of the rights to privacy and confidentiality of communications, and to promote a trusted and secure Internet of Things in the digital single market, it is necessary to clarify that this Regulation should apply to the transmission of machine-to-machine communications. Therefore, the principle of confidentiality enshrined in this Regulation should also apply to the transmission of machine-to-machine communications. Specific safeguards could also be adopted under sectorial legislation, as for instance Directive 2014/53/EU.

– gelöscht / deleted – 

(12) The use of machine-to-machine and Internet of Things services, that is to say services involving an automated transfer of data and information between devices or software-based applications with limited or no human interaction, is emerging. In order to ensure full protection of the rights to privacy and confidentiality of communications, and to promote a trusted and secure Internet of Things in the digital single market, this Regulation, in particular the requirements relating to the confidentiality of communications, should apply to the transmission of such services. The transmission of machine-to-machine or Internet of Things services regularly involves the conveyance of signals via an electronic communications network and, hence, constitutes an electronic communications service. This Regulation should apply to the provider of the transmission service if that transmission is carried out via a publicly available electronic communications service or network. Conversely, where the transmission of machine-to-machine or Internet of Things services is carried out via a private or closed network such as a closed factory network, this Regulation should not apply. Typically, providers of machine-to-machine or Internet of Things services operate at the application layer (on top of electronic communications services). These service providers and their customers who use IoT services are in this respect end-users, and not providers of the electronic communication service and therefore benefit from the protection of confidentiality of their electronic communications data. Specific safeguards could also be adopted under sectorial legislation, as for instance Directive 2014/53/EU.

(13)  The development of fast and efficient wireless technologies has fostered the increasing availability for the public of internet access via wireless networks accessible by anyone in public and semi-private spaces such as ‚hotspots‘ situated at different places within a city, department stores, shopping malls and hospitals. To the extent that those communications networks are provided to an undefined group of end-users, the confidentiality of the communications transmitted through such networks should be protected. The fact that wireless electronic communications services may be ancillary to other services should not stand in the way of ensuring the protection of confidentiality of communications data and application of this Regulation. Therefore, this Regulation should apply to electronic communications data using electronic communications services and public communications networks. In contrast, this Regulation should not apply to closed groups of end-users such as corporate networks, access to which is limited to members of the corporation.

(13)  The development of fast and efficient wireless technologies has fostered the increasing availability for the public of internet access via wireless networks accessible by anyone in public and semi-private spaces such as wireless internet access points situated at different places within a city, for example department stores, shopping malls, hospitals, airports, hotels and restaurants. Those access points might require a log in or provide a password and might be provided also by public administrations, including Union bodies and agencies. To the extent that those communications networks are provided to users, the confidentiality of the communications transmitted through such networks should be protected. Therefore, this Regulation should apply to electronic communications data using electronic communications services and public communications networks. This Regulation should also apply to closed social media profiles and groups that the users have restricted or defined as private. In contrast, this Regulation should not apply to closed groups of end-users such as corporate intranet networks, access to which is limited to members of an organisation. The mere requirement of a password should not be considered as providing access to a closed group of end-users if the access to the service as a whole is provided to an undefined group of end-users.

(13) The development of fast and efficient wireless technologies has fostered the increasing availability for the public of internet access via wireless networks accessible by anyone in public and semi-private spaces such as ‚hotspots‘ situated at different places within a city, department stores, shopping malls and hospitals. To the extent that those communications networks are provided to an undefined group of end-users, regardless if these networks are secured with passwords or not, the confidentiality of the communications transmitted through such networks should be protected. The fact that wireless electronic communications services may be ancillary to other services should not stand in the way of ensuring the protection of confidentiality of communications data and application of this Regulation. Therefore, this Regulation should apply to electronic communications data using publicly available electronic communications services and public electronic communications networks. In contrast, this Regulation should not apply to closed groups of end-users such as home (fixed or wireless) networks or corporate networks or networks to which the, access is limited to a pre-defined group of end-users, e.g. to family members or, members of a corporation. Similarly, this Regulation does not apply to data processed by services or networks used for purely internal communications purposes between public institutions, courts, court administrations, financial, social and employment administrations. As soon as electronic communications data is transferred from such a closed group network to a public electronic communications network, this Regulation applies to such data, including when it is M2M/IoT and personal/home assistant data. The provisions of this Regulation regarding the protection of end-users‘ terminal equipment information also apply in the case of terminal equipment connected to a closed group network such as a home (fixed or wireless) network which in turn is connected to a public electronic communications network. 

(14)  Electronic communications data should be defined in a sufficiently broad and technology neutral way so as to encompass any information concerning the content transmitted or exchanged (electronic communications content) and the information concerning an end-user of electronic communications services processed for the purposes of transmitting, distributing or enabling the exchange of electronic communications content; including data to trace and identify the source and destination of a communication, geographical location and the date, time, duration and the type of communication.

(14)  Electronic communications data should be defined in a sufficiently broad and technology neutral way so as to encompass any information concerning the content transmitted or exchanged (electronic communications content) and the information concerning a user of electronic communications services processed for the purposes of transmitting, distributing or enabling the exchange of electronic communications content; including data to trace and identify the source and destination of a communication, geographical location and the date, time, duration and the type of communication. It should also include data necessary to identify users’ terminal equipment and data emitted by terminal equipment when searching for access points or other equipment.

– unverändert / unchanged – 

Whether such signals and the related data are conveyed by wire, radio, optical or electromagnetic means, including satellite networks, cable networks, fixed (circuit- and packet-switched, including internet) and mobile terrestrial networks, electricity cable systems, the data related to such signals should be considered as electronic communications metadata and therefore be subject to the provisions of this Regulation. Electronic communications metadata may include information that is part of the subscription to the service when such information is processed for the purposes of transmitting, distributing or exchanging electronic communications content. 

The exclusion of services providing “content transmitted using electronic communications networks” from the definition of “electronic communications service” in Article 4 of this Regulation does not mean that service providers who offer both electronic communications services and content services are outside the scope of the provisions of the Regulation which applies to the providers of electronic communications services. 

(14 a)  Modern electronic communications services, including the Internet and the OTT services that run on top of it, function on the basis of a protocol stack. Each protocol defines content (also called payload), a header and sometimes a trailer. Any higher protocol in the stack would be encapsulated in the content part of a lower level protocol. For example, A TCP segment would be in the content part of an IP packet, whose header would include the source and destination IP addresses between which the IP packet should be routed. TCP segments could contain an SMTP message in their content part, i.e. an e-mail. At the SMTP protocol level, the header would notably contain the sender and receiver email addresses and the content part would contain the message itself. In practice, the header and the trailer of a protocol message correspond to metadata for the given protocol. This means that the metadata on one protocol layer will be content for the lower layers encapsulating the information. Where this Regulation lays down different rules for the processing of content and metadata, this should be understood specifically for the considered electronic communications service and the protocol layer it is operating on. For an Internet service provider, for example, the subject, the sender, the recipient and the body of an email will be altogether considered as content of the IP packets routed by it. However regarding an e-mail provider, only the subject and the body of the email will considered as content, whereas the recipient and the sender will be considered as metadata. This separation of protocol layers is crucial for maintaining the neutrality of the electronic communications services (net neutrality), which is protected under Regulation (EU) 2015/2120.

(15)  Electronic communications data should be treated as confidential. This means that any interference with the transmission of electronic communications data, whether directly by human intervention or through the intermediation of automated processing by machines, without the consent of all the communicating parties should be prohibited. The prohibition of interception of communications data should apply during their conveyance, i.e. until receipt of the content of the electronic communication by the intended addressee. Interception of electronic communications data may occur, for example, when someone other than the communicating parties, listens to calls, reads, scans or stores the content of electronic communications, or the associated metadata for purposes other than the exchange of communications. Interception also occurs when third parties monitor websites visited, timing of the visits, interaction with others, etc., without the consent of the end-user concerned. As technology evolves, the technical ways to engage in interception have also increased. Such ways may range from the installation of equipment that gathers data from terminal equipment over targeted areas, such as the so-called IMSI (International Mobile Subscriber Identity) catchers, to programs and techniques that, for example, surreptitiously monitor browsing habits for the purpose of creating end-user profiles. Other examples of interception include capturing payload data or content data from unencrypted wireless networks and routers, including browsing habits without the end-users‚ consent.

(15)  Electronic communications should be treated as confidential. This means that any interference with the transmission of electronic communications, whether directly by human intervention or through the intermediation of automated processing by machines, without the consent of all the communicating parties should be prohibited. When the processing is allowed under any exception to the prohibitions under this Regulation, any other processing on the basis of Article 6 of Regulation (EU) 2016/679 should be considered as prohibited, including processing for another purpose on the basis of Article 6 paragraph 4 of that Regulation. This should not prevent requesting additional consent for new processing operations. The prohibition of interception of communications should apply also during their conveyance. For non-real-time electronic communications such as email or messaging, the transmission starts with the submission of the content for delivery and finishes with the receipt of the content of the electronic communication by the service provider of the intended recipient. Interception of electronic communications may occur, for example, when someone other than the communicating parties, listens to calls, reads, scans or stores the content of electronic communications, or the associated metadata for purposes other than the exchange of communications. Interception also occurs when third parties monitor websites visited, timing of the visits, interaction with others, etc., without the consent of the user concerned. As technology evolves, the technical ways to engage in interception have also increased. Such ways may range from the installation of equipment that gathers data from terminal equipment over targeted areas, such as the so-called IMSI (International Mobile Subscriber Identity) catchers, to programs and techniques that, for example, surreptitiously monitor browsing habits for the purpose of creating user profiles. Other examples of interception include capturing payload data or content data from unencrypted wireless networks and routers, and analysis of users‘ traffic data, including browsing habits without the users‚ consent.

– unverändert / unchanged – 

(15aa) In order to ensure the confidentiality of electronic communications data, providers of electronic communications services should apply security measures in accordance with Article 40 of Directive (EU) 2018/1972 and Article 32 of Regulation (EU) 2016/679. 

(15aaa) Moreover, trade secrets are protected in accordance with Directive (EU) 2016/943. 

(15a) The prohibition of interception of electronic communications content under this Regulation should apply until receipt of the content of the electronic communication by the intended addressee, i.e. during the end-to-end exchange of electronic communications content between end-users. Receipt implies that the end-user gains control over, and has the possiblity to interact with, the individual electronic communications content, for example by recording, storing, printing or otherwise processing such data, including for security purposes. The exact moment of the receipt of electronic communications content may depend on the type of electronic communications service that is provided. For instance, depending on the technology used, a voice call may be completed as soon as either of the end-users ends the call. For electronic mail or instant messaging, depending on the technology used, the moment of receipt may be as soon as the addressee has collected the message, typically from the server of the electronic communications service provider. Upon receipt, electronic communications content and related metadata should be erased or made anonymous in such a manner that no natural or legal person is identifiable, by the provider of the electronic communications service except when processing is permitted under this Regulation After electronic communications content has been received by the intended end-user or end-users, it may be recorded or stored by those end-users. End-users are free to mandate a third party to record or store such data on their behalf. 

(16)  The prohibition of storage of communications is not intended to prohibit any automatic, intermediate and transient storage of this information insofar as this takes place for the sole purpose of carrying out the transmission in the electronic communications network. It should not prohibit either the processing of electronic communications data to ensure the security and continuity of the electronic communications services, including checking security threats such as the presence of malware or the processing of metadata to ensure the necessary quality of service requirements, such as latency, jitter etc.

(16)  The prohibition of storage of communications is not intended to prohibit any automatic, intermediate and transient storage of this information insofar as this takes place for the sole purpose of carrying out the transmission. It should not prohibit the processing of electronic communications data by public authorities, computer emergency response teams (CERTs), computer security incident response teams (CSIRTs), providers of electronic communications networks and services and by providers of security technologies and services, in compliance with Regulation 2016/679 and to the extent strictly necessary and proportionate for the sole purposes of ensuring network and information security, [i.e. preservation of availability, integrity], and confidentiality of information, and ensuring the security of the related services offered by, or accessible via, those networks and systems. This could, for example, include preventing unauthorised access to electronic communications networks and malicious code distribution and stopping ‘denial of service’ attacks and damage to computer and electronic communications systems, security services, checking security threats such as the presence of malware, spam or to check against DDoS attacks, or the processing of metadata to ensure the necessary quality of service requirements, such as latency, jitter etc. Such processing could be carried out by another party which acts as a data processor in the meaning of Regulation (EU) 2016/679 for the provider of the service.

(16) The prohibition of processing, including storage of communications is not intended to prohibit any automatic, intermediate and transient processing, including storage of this information insofar as this takes place for the sole purpose of carrying out the transmission in the electronic communications network. Processing of electronic communications data by providers of electronic communications services and networks should only be permitted in accordance with this Regulation. It should not prohibit the processing of electronic communications data without consent of the end-user to ensure the security, including the availability, authenticity, integrity or confidentiality, of the electronic communications services, including for example checking security threats such as the presence of malware or viruses, or the identification of phishing. Security measures are essential to prevent personal data breaches in electronic communications. Spam electronic messages may also affect the availability of the respective services and could potentially impact the performance of networks and services, which justifies the processing of electronic communications data to mitigate this risk. Such security measures, including anti-spam measures, should be proportionate and should be performed in the least intrusive manner. Providers of electronic communications services are encouraged to offer end-users the possibility to check electronic messages deemed as spam in order to ascertain whether they were indeed spam.

(16a) The protection of the content of electronic communications pertains to the essence of the fundamental right to respect for private and family life, home and communications protected under Article 7 of the Charter. Any interference with the content of electronic communications should be allowed only under very clear defined conditions, for specific purposes and be subject to adequate safeguards against abuse. This Regulation provides for the possibility of providers of electronic communications services to process electronic communications content in transit, with the informed consent of all the end-users concerned. For example, providers may offer services that entail the scanning of emails to remove certain pre-defined material. Given the sensitivity of the content of communications, this Regulation sets forth a presumption that the processing of such content data will result in high risks to the rights and freedoms of natural persons. When processing such type of content, the provider of the electronic communications service should consult the supervisory authority if necessary pursuant to Article 36 (1) of Regulation (EU) 2016/679. Such consultation should be in accordance with Article 36 (2) and (3) of Regulation (EU) 2016/679. The presumption does not encompass the processing of content to provide a service requested by the end-user where the end-user has consented to such processing and it is carried out for the purposes and duration strictly necessary and proportionate for such service.

(16b) Services that facilitate end-users everyday life such as index functionality, personal assistant, translation services and services that enable more inclusion for persons with disabilities such as text-to-speech services are emerging. Processing of electronic communication content might be necessary also for some functionalities used normally in services for individual use, such as searching and organising the messages in email or messaging applications. Therefore, as regards the processing of electronic communications content for services requested by the end-user for their own individual use, consent should only be requested required from the end-user requesting the service taking into account that the processing should not adversely affect fundamental rights and interest of another end-user concerned. Processing of electronic communications data should be allowed with the prior consent of the end-user concerned and to the extent necessary for the provision of the requested functionalities. 

(16c) Providers of electronic communications services may, for example, obtain the consent of the end-user for the processing of electronic communications data, at the time of the conclusion of the contract, and any moment in time thereafter. In some cases, the legal person having subscribed to the electronic communications service may allow a natural person, such as an employee, to make use of the service in accordance with Regulation 2016/679. 

(17)  The processing of electronic communications data can be useful for businesses, consumers and society as a whole. 

Vis-à-vis Directive 2002/58/EC, this Regulation broadens the possibilities for providers of electronic communications services to process electronic communications metadata, based on end-users consent. However, end-users attach great importance to the confidentiality of their communications, including their online activities, and that they want to control the use of electronic communications data for purposes other than conveying the communication. Therefore, this Regulation should require providers of electronic communications services to obtain end-users‚ consent to process electronic communications metadata, which should include data on the location of the device generated for the purposes of granting and maintaining access and connection to the service. Location data that is generated other than in the context of providing electronic communications services should not be considered as metadata. Examples of commercial usages of electronic communications metadata by providers of electronic communications services may include the provision of heatmaps; a graphical representation of data using colors to indicate the presence of individuals. To display the traffic movements in certain directions during a certain period of time, an identifier is necessary to link the positions of individuals at certain time intervals. This identifier would be missing if anonymous data were to be used and such movement could not be displayed. Such usage of electronic communications metadata could, for example, benefit public authorities and public transport operators to define where to develop new infrastructure, based on the usage of and pressure on the existing structure. Where a type of processing of electronic communications metadata, in particular using new technologies, and taking into account the nature, scope, context and purposes of the processing, is likely to result in a high risk to the rights and freedoms of natural persons, a data protection impact assessment and, as the case may be, a consultation of the supervisory authority should take place prior to the processing, in accordance with Articles 35 and 36 of Regulation (EU) 2016/679.

However, users attach great importance to the confidentiality of their communications, including their online activities, and that they want to control the use of electronic communications data for purposes other than conveying the communication. This Regulation should require providers of electronic communications services to obtain users‚ consent to process electronic communications metadata, which should include data on the location of the device generated for the purposes of granting and maintaining access and connection to the service. Location data that is generated other than in the context of providing electronic communications services should not be considered as metadata. Where a type of processing of electronic communications metadata, in particular using new technologies, and taking into account the nature, scope, context and purposes of the processing, is likely to result in a high risk to the rights and freedoms of natural persons, a data protection impact assessment and, as the case may be, a consultation of the supervisory authority should take place prior to the processing, in accordance with Articles 35 and 36 of Regulation (EU) 2016/679.

Vis-à-vis Directive 2002/58/EC, this Regulation broadens the possibilities for providers of electronic communications services to process electronic communications metadata. However, end-users attach great importance to the confidentiality of their communications, including their online activities, and they also want to control the use of electronic communications metadata for purposes other than conveying the communication. Therefore, providers of electronic communications networks and services should be permitted to process electronic communications metadata after having obtained the end-users‘ consent. In addition, those providers should be permitted to process an end-user’s electronic communications metadata where it is necessary for the provision of an electronic communications service based on a contract with that end-user and for billing related to that contract. Examples of commercial usages of electronic communications metadata by providers of electronic communications services may include the provision of heat maps; a graphical representation of data using colours to indicate the presence of individuals. To display the traffic movements in certain directions during a certain period of time, an identifier is necessary to link the positions of individuals at certain time intervals. This identifier would be missing if anonymous data were to be used and such movement could not be displayed. Such usage of electronic communications metadata could, for example, benefit public authorities and public transport operators to define where to develop new infrastructure, based on the usage of and pressure on the existing structure. Where a type of processing of electronic communications metadata, in particular using new technologies, and taking into account the nature, scope, context and purposes of the processing, is likely to result in a high risk to the rights and freedoms of natural persons, a data protection impact assessment and, as the case may be, a consultation of the supervisory authority should take place prior to the processing, in accordance with Articles 35 and 36 of Regulation (EU) 2016/679.

(17 a)  Examples of commercial usages of electronic communications metadata by providers of electronic communications services may include the provision of heatmaps; a graphical representation of data using colors to indicate the presence of individuals. To display the traffic movements in certain directions during a certain period of time, an identifier is necessary to link the positions of individuals at certain time intervals. This identifier would be missing if anonymous data were to be used and such movement could not be displayed. Such usage of electronic communications metadata could, for example, benefit public authorities and public transport operators to define where to develop new infrastructure, based on the usage of and pressure on the existing structure.

(17aa) Further processing for purposes other than for which the metadata where initially collected may take place without the consent of the end-users concerned, provided that such processing is compatible with the purpose for which the metadata are initially collected, certain additional conditions and safeguards set out by this Regulation are complied with, including the requirement to genuinely anonymise the result before sharing the analysis with third parties. As end-users attach great value to the confidentiality of their communications, including their physical movements, such data cannot be used to determine the nature or characteristics on an end-user or to build a profile of an end-user, in order to, for example, avoid that the data is used for segmentation purposes, to monitor the behaviour of a specific end-user or to draw conclusions concerning the private life of an end-user. For the same reason, the end-user must be provided with information about these processing activities taking place and given the right to object to such processing. 

(17a) The processing of electronic communications metadata should also be regarded to be permitted where it is necessary in order to protect an interest which is essential for the life of the end-users who are natural persons or that of another natural person. Processing of electronic communications metadata for the protection of vital interests of the end-user may include for instance processing necessary for humanitarian purposes, including for monitoring epidemics and their spread or in humanitarian emergencies, in particular natural and man-made disasters. Processing of electronic communications metadata of an end-user for the protection of the vital interest of an end-user who is a natural person should in principle take place only where the processing cannot be manifestly based on another legal basis and where the protection of such interests cannot be ensured without that processing. 

(17b) Processing of electronic communication metadata for scientific research or statistical purposes could also be considered to be permitted processing. This type of processing should be subject to safeguards to ensure privacy of the end-users by employing appropriate security measures such as encryption and pseudonymisation. In addition, end-users who are natural persons should be given the right to object. Processing for statistical counting and scientific purposes should only result in aggregated data, and not be used in support of measures or decisions regarding any particular natural person. In particular, such data should not be used to determine the nature or characteristics of an end-user, to build an individual profile or to draw conclusions concerning an end-user private life. Such usage of electronic communications metadata could, for example, benefit public authorities and public transport operators to define where to develop new infrastructure, based on the usage of and pressure on the existing structure. Such usage should also include processing that is necessary for the development, production and dissemination of official national or European statistics in accordance with national or Union law, to the extent necessary for this purpose. 

(18)  End-users may consent to the processing of their metadata to receive specific services such as protection services against fraudulent activities (by analysing usage data, location and customer account in real time). In the digital economy, services are often supplied against counter-performance other than money, for instance by end-users being exposed to advertisements. For the purposes of this Regulation, consent of an end-user, regardless of whether the latter is a natural or a legal person, should have the same meaning and be subject to the same conditions as the data subject’s consent under Regulation (EU) 2016/679. Basic broadband internet access and voice communications services are to be considered as essential services for individuals to be able to communicate and participate to the benefits of the digital economy. Consent for processing data from internet or voice communication usage will not be valid if the data subject has no genuine and free choice, or is unable to refuse or withdraw consent without detriment.

(18)  The user or end-user may consent to the processing of their metadata to receive specific services such as protection services against fraudulent activities (by analysing usage data, location and customer account in real time). In the digital economy, services are often supplied against counter-performance other than money, for instance by end-users being exposed to advertisements. For the purposes of this Regulation, consent of a user, should have the same meaning and be subject to the same conditions as the data subject’s consent under Regulation (EU) 2016/679. Basic broadband internet access and voice communications services are to be considered as essential services for individuals to be able to communicate and participate to the benefits of the digital economy. Consent for processing data from internet or voice communication usage will not be valid if the data subject has no genuine and free choice, or is unable to refuse or withdraw consent without detriment. Consent should not be considered as freely given if it is required to access any service or obtained through repetitive requests. In order to prevent such abusive requests, users should be able to order service providers to remember their choice not to consent and to adhere to technical specifications signalling not to consent, withdrawal of consent, or an objection.

(18) End-users may consent to the processing of their metadata to receive specific services such as protection services against fraudulent activities (by analysing usage data, location and customer account in real time). In the digital economy, services are often supplied against counter-performance other than money, for instance by end-users being exposed to advertisements. For the purposes of this Regulation, consent of an end-user, regardless of whether the latter is a natural or a legal person, should have the same meaning and be subject to the same conditions as the data subject’s consent under Regulation (EU) 2016/679. Basic broadband internet access and voice communications services are to be considered as essential services for individuals to be able to communicate and participate to the benefits of the digital economy. Consent for processing electronic communications data from internet or voice communication usage will not be valid if the data subject end-user has no genuine and free choice or is unable to refuse or withdraw consent without detriment.

(19)  The content of electronic communications pertains to the essence of the fundamental right to respect for private and family life, home and communications protected under Article 7 of the Charter. Any interference with the content of electronic communications should be allowed only under very clear defined conditions, for specific purposes and be subject to adequate safeguards against abuse. This Regulation provides for the possibility of providers of electronic communications services to process electronic communications data in transit, with the informed consent of all the end-users concerned. For example, providers may offer services that entail the scanning of emails to remove certain pre-defined material. Given the sensitivity of the content of communications, this Regulation sets forth a presumption that the processing of such content data will result in high risks to the rights and freedoms of natural persons. When processing such type of data, the provider of the electronic communications service should always consult the supervisory authority prior to the processing. Such consultation should be in accordance with Article 36 (2) and (3) of Regulation (EU) 2016/679. The presumption does not encompass the processing of content data to provide a service requested by the end-user where the end-user has consented to such processing and it is carried out for the purposes and duration strictly necessary and proportionate for such service. After electronic communications content has been sent by the end-user and received by the intended end-user or end-users, it may be recorded or stored by the end-user, end-users or by a third party entrusted by them to record or store such data. Any processing of such data must comply with Regulation (EU) 2016/679.

(19)  The content of electronic communications pertains to the essence of the fundamental right to respect for private and family life, home and communications protected under Article 7 of the Charter. Any processing of content data of electronic communications should be allowed only under very clear defined conditions, for specific purposes and be subject to adequate safeguards against abuse. This Regulation provides for the possibility of providers of electronic communications services to process electronic communications data in transit, with the informed consent of all the users concerned. For example, providers may offer services that entail the scanning of emails to remove certain pre-defined material. Given the sensitivity of the content of communications, this Regulation sets forth a presumption that the processing of such content data will result in high risks to the rights and freedoms of natural persons. When processing such type of data, the provider of the electronic communications service should always carry out an impact assessment as provided for in Regulation (EU) 2016/679 and if necessary under that Regulation, consult the supervisory authority prior to the processing. After electronic communications content has been sent by the user and received by the intended user or users, it may be recorded or stored by the user, users or by a third party entrusted by them to record or store such data, which could be the electronic communications service provider. Any processing of such stored communications data where the data is stored on behalf of the user must comply with this Regulation. The user may further process the data and if it contains personal data, must comply with Regulation (EU) 2016/679.

(19) Third parties are legal or natural person that do not provide an electronic communications service to the end-user concerned. However, sometimes the same legal or natural person can also provide different kind of services to the same end-user, for example information society service such as cloud storage. With respect to the provision of this other service, the same legal person is normally deemed to be a third party. If the other service is necessary for the provision of the electronic communication service, such as automatic storage of the messages in the cloud by web-based email, the provider of such a service normally is not deemed to be a third party. 

(19 a)  It should be possible to process electronic communications data for the purposes of providing services explicitly requested by a user for personal or personal work-related purposes such as search or keyword indexing functionality, virtual assistants, text-to-speech engines and translation services, including picture-to-voice or other automated content processing used as accessibility tools by persons with disabilities. This should be possible without the consent of all users but may take place with the consent of the user requesting the service. Such consent also precludes the provider from processing those data for other purposes.

(19 b)  Interference with the confidentiality of metadata or interference with the protection of information stored in and related to end-users’ terminal equipment can only be regarded to be lawful where it is strictly necessary and proportionate to protect an interest which is essential for the life of the data subject or that of another natural person. Such interference based on the vital interest of another natural person should take place only in a specific case and where the processing cannot be manifestly based on another legal basis.

(20)  Terminal equipment of end-users of electronic communications networks and any information relating to the usage of such terminal equipment, whether in particular is stored in or emitted by such equipment, requested from or processed in order to enable it to connect to another device and or network equipment, are part of the private sphere of the end-users requiring protection under the Charter of Fundamental Rights of the European Union and the European Convention for the Protection of Human Rights and Fundamental Freedoms. Given that such equipment contains or processes information that may reveal details of an individual’s emotional, political, social complexities, including the content of communications, pictures, the location of individuals by accessing the device’s GPS capabilities, contact lists, and other information already stored in the device, the information related to such equipment requires enhanced privacy protection. Furthermore, the so-called spyware, web bugs, hidden identifiers, tracking cookies and other similar unwanted tracking tools can enter end-user’s terminal equipment without their knowledge in order to gain access to information, to store hidden information and to trace the activities. Information related to the end-user’s device may also be collected remotely for the purpose of identification and tracking, using techniques such as the so-called ‘device fingerprinting’, often without the knowledge of the end-user, and may seriously intrude upon the privacy of these end-users. Techniques that surreptitiously monitor the actions of end-users, for example by tracking their activities online or the location of their terminal equipment, or subvert the operation of the end-users’ terminal equipment pose a serious threat to the privacy of end-users. Therefore, any such interference with the end-user’s terminal equipment should be allowed only with the end-user’s consent and for specific and transparent purposes.

(20)  Terminal equipment of users of electronic communications networks and any information relating to the usage of such terminal equipment, whether in particular is stored in or emitted by such equipment, requested from or processed in order to enable it to connect to another device and or network equipment, are part of the private sphere of the users requiring protection under the Charter of Fundamental Rights of the European Union and the European Convention for the Protection of Human Rights and Fundamental Freedoms. Given that such equipment contains or processes very sensitive data that may reveal details of the behaviour, psychological features, emotional condition and political and social preferences of an individual, including the content of communications, pictures, the location of individuals by accessing the GPS capabilities of the device, contact lists, and other information already stored in the device, the information related to such equipment requires enhanced privacy protection. Information related to the user’s device may also be collected remotely for the purpose of identification and tracking, using techniques such as the so-called ‘device fingerprinting’, often without the knowledge of the end-user, and may seriously intrude upon the privacy of these users. Furthermore, so-called spyware, web bugs, hidden identifiers and unwanted tracking tools can enter users‘ terminal equipment without their knowledge in order to gain access to information or to store hidden information, to process data and use input and output functionalities such as sensors, and to trace the activities. Techniques that surreptitiously monitor the actions of users, for example by tracking their activities online or the location of their terminal equipment, or subvert the operation of the users’ terminal equipment pose a serious threat to the privacy of users. Therefore, any such interference with the user’s terminal equipment should be allowed only with the user’s consent and for specific and transparent purposes. Users should receive all relevant information about the intended processing in clear and easily understandable language. Such information should be provided separately from the terms and conditions of the service.

(20) Terminal equipment of end-users of electronic communications networks and any information relating to the usage of such terminal equipment, in particular where such information is processed by, stored in, or collected from such equipment, or where information is collected from it or processed in order to enable it to connect to another device and or network equipment, are part of the end-user’s private sphere, including the privacy of one’s communications, and require protection in accordance with the Charter of Fundamental Rights of the European Union. Given that such equipment contains or processes information that may reveal details of an individual’s emotional, political, social complexities, including the content of communications, pictures, the location of individuals by accessing the device’s GPS capabilities, contact lists, and other information already stored in the device, the information related to such equipment requires enhanced privacy protection. Furthermore, the so-called spyware, web bugs, hidden identifiers, tracking cookies and other similar unwanted tracking tools can enter end-user’s terminal equipment without their knowledge in order to gain access to information, to store hidden information and to trace the activities. Information related to the end-user’s device may also be collected remotely for the purpose of identification and tracking, using techniques such as the so-called ‘device fingerprinting’, often without the knowledge of the end-user, and may seriously intrude upon the privacy of these end-users. Techniques that surreptitiously monitor the actions of end-users, for example by tracking their activities online or the location of their terminal equipment, or subvert the operation of the end-users’ terminal equipment pose a serious threat to the privacy of end-users. Therefore, the use of processing and storage capabilities and the collection of information from end-user’s terminal equipment should be allowed only with the end-user’s consent and or for other specific and transparent purposes as laid down in this Regulation. The information collected from end-user’s terminal equipment can often contain personal data. 

(20aa) In light of the principle of purpose limitation laid down in Article 5 (1) (b) of Regulation (EU) 2016/679, it should be possible to process in accordance with this Regulation data collected from the end-user’s terminal equipment for purposes compatible with the purpose for which it was collected from the end-user’s terminal equipment. 

(20aaa) The responsibility for obtaining consent for the storage of a cookie or similar identifier lies on the entity that makes use of processing and storage capabilities of terminal equipment or collects information from end-users’ terminal equipment, such as an information society service provider or ad network provider. Such entities may request another party to obtain consent on their behalf. The end-user’s consent to storage of a cookie or similar identifier may also entail consent for the subsequent readings of the cookie in the context of a revisit to the same website domain initially visited by the end-user. 

(20aaaa) In contrast to access to website content provided against monetary payment, where access is provided without direct monetary payment and is made dependent on the consent of the end-user to the storage and reading of cookies for additional purposes, requiring such consent would normally not be considered as depriving the end-user of a genuine choice if the end-user is able to choose between services, on the basis of clear, precise and user-friendly information about the purposes of cookies and similar techniques, between an offer that includes consenting to the use of cookies for additional purposes on the one hand, and an equivalent offer by the same provider that does not involve consenting to data use for additional purposes, on the other hand. Conversely, in some cases, making access to website content dependent on consent to the use of such cookies may be considered, in the presence of a clear imbalance between the end-user and the service provider as depriving the end-user of a genuine choice. This would normally be the case for websites providing certain services, such as those provided by public authorities. Similarly, such imbalance could exist where the end-user has only few or no alternatives to the service, and thus has no real choice as to the usage of cookies for instance in case of service providers in a dominant position. 

To the extent that use is made of processing and storage capabilities of terminal equipment and information from end-users’ terminal equipment is collected for other purposes than for what is necessary for the purpose of providing an electronic communication service or for the provision of the service requested, consent should be required. In such a scenario, consent should normally be given by the end-user who requests the service from the provider of the service.

(20a) End-users are often requested to provide consent to the storage and access to stored data in their terminal equipment, due to the ubiquitous use of tracking cookies and similar tracking technologies. As a result, end-users may be overloaded with requests to provide consent. This can lead to a situation where consent request information is no longer read and the protection offered by consent is undermined. Implementation of technical means in electronic communications software to provide specific and informed consent through transparent and user-friendly settings, can be useful to address this issue. Where available and technically feasible, an end user may therefore grant, through software settings, consent to a specific provider for the use of processing and storage capabilities of terminal equipment for one or multiple specific purposes across one or more specific services of that provider. For example, an end-user can give consent to the use of certain types of cookies by whitelisting one or several providers for their specified purposes. Providers of software are encouraged to include settings in their software which allows end-users, in a user friendly and transparent manner, to manage consent to the storage and access to stored data in their terminal equipment by easily setting up and amending whitelists and withdrawing consent at any moment. In light of end-user’s self-determination, consent directly expressed by an end-user should always prevail over software settings. Any consent requested and given by an end-user to a service should be directly implemented, without any further delay, by the applications of the end user’s terminal. If the storage of information or the access of information already stored in the end-user’s terminal equipment is permitted, the same should apply. 

(21)  Exceptions to the obligation to obtain consent to make use of the processing and storage capabilities of terminal equipment or to access information stored in terminal equipment should be limited to situations that involve no, or only very limited, intrusion of privacy. For instance, consent should not be requested for authorizing the technical storage or access which is strictly necessary and proportionate for the legitimate purpose of enabling the use of a specific service explicitly requested by the end-user. This may include the storing of cookies for the duration of a single established session on a website to keep track of the end-user’s input when filling in online forms over several pages. Cookies can also be a legitimate and useful tool, for example, in measuring web traffic to a website. Information society providers that engage in configuration checking to provide the service in compliance with the end-user’s settings and the mere logging of the fact that the end-user’s device is unable to receive content requested by the end-user should not constitute access to such a device or use of the device processing capabilities.

(21)  Exceptions to the obligation to obtain consent to make use of the processing and storage capabilities of terminal equipment or to access information stored in terminal equipment should be limited to situations that involve no, or only very limited, intrusion of privacy. For instance, consent should not be requested for authorising the technical storage or access which is strictly necessary and proportionate for the legitimate purpose of enabling the use of a specific service explicitly requested by the user. This may include the storing of information (such as cookies and other identifiers) for the duration of a single established session on a website to keep track of the end-user’s input when filling in online forms over several pages. Such techniques, if implemented with appropriate privacy safeguards, can also be a legitimate and useful tool, for example, in measuring web traffic to a website. Such measuring implies that the result of processing is not personal data, but aggregate data, and that this result or the personal data are not used in support of measures or decisions regarding any particular natural person. Information society providers could engage in configuration checking in order to provide the service in compliance with the user’s settings and the mere logging revealing the fact that the user’s device is unable to receive content requested by the user, should not constitute illegitimate access to such a device, or use of the device processing capabilities for which consent is required.

(21) Use of the processing and storage capabilities of terminal equipment or access to information stored in terminal equipment without the consent of the end-user should be limited to situations that involve no, or only very limited, intrusion of privacy. For instance, consent should not be requested for authorizing the technical storage or access which is necessary and proportionate for the purpose of providing a specific service requested by the end-user. This may include the storing of cookies for the duration of a single established session on a website to keep track of the end-user’s input when filling in online forms over several pages, authentication session cookies used to verify the identity of end-users engaged in online transactions or cookies used to remember items selected by the end-user and placed in shopping basket. In the area of IoT services which rely on connected devices (such as connected thermostats, connected medical devices, smart meters or automated and connected vehicles), the use of the processing and storage capacities of those devices and access to information stored therein should not require consent to the extent that such use or access is necessary for the provision of the service requested by the end-user. For example, storing of information in or accessing information from a smart meter might be considered as necessary for the provision of a requested energy supply service to the extent the information stored and accessed is necessary for the stability and security of the energy network or for the billing of the end-users‘ energy consumption. The same applies for instance to storing, processing or accessing of information from automated and connected vehicles for security related software updates. 

(21aa) In some cases the use of processing and storage capabilities of terminal equipment and the collection of information from end-users‘ terminal equipment may also be necessary for providing a service, requested by the end-user, such as services provided in accordance with the freedom of expression and information including for journalistic purposes, e.g. online newspaper or other press publications as defined in Article 2 (4) of Directive (EU) 2019/790, that is wholly or mainly financed by advertising provided that, in addition, the end-user has been provided with clear, precise and user-friendly information about the purposes of cookies or similar techniques and has accepted such use. 

(21a) Cookies can also be a legitimate and useful tool, for example, in assessing the effectiveness of a delivered information society service, for example of website design and advertising or by helping to measure the numbers of end-users visiting a website, certain pages of a website or the number of end-users of an application. This is not the case, however, regarding cookies and similar identifiers used to determine the nature of who is using the site, which always require the consent of the end-user. Information society providers that engage in configuration checking to provide the service in compliance with the end-user’s settings and the mere logging of the fact that the end-user’s device is unable to receive content requested by the end-user should not constitute access to such a device or use of the device processing capabilities.

(21b) Consent should not be necessary either when the purpose of using the processing storage capabilities of terminal equipment is to fix security vulnerabilities and other security bugs or for software-updates for security reasons, provided that the end-user concerned has been informed prior to such updates, and provided that such updates do not in any way change the functionality of the hardware or software or the privacy settings chosen by the end-user and the end-user has the possibility to postpone or turn off the automatic installation of such updates. Software updates that do not exclusively have a security purpose, for example those intended to add new features to an application or improve its performance, should not fall under this exception. 

(23)  The principles of data protection by design and by default were codified under Article 25 of Regulation (EU) 2016/679. Currently, the default settings for cookies are set in most current browsers to ‘accept all cookies’. Therefore providers of software enabling the retrieval and presentation of information on the internet should have an obligation to configure the software so that it offers the option to prevent third parties from storing information on the terminal equipment; this is often presented as ‘reject third party cookies’. End-users should be offered a set of privacy setting options, ranging from higher (for example, ‘never accept cookies’) to lower (for example, ‘always accept cookies’) and intermediate (for example, ‘reject third party cookies’ or ‘only accept first party cookies’). Such privacy settings should be presented in a an easily visible and intelligible manner.

(23)  The principles of data protection by design and by default are codified under Article 25 of Regulation (EU) 2016/679. Currently, the default settings for cookies are set in most current browsers to ‘accept all cookies’. Therefore providers of software permitting electronic communications (such as browsers, operating systems and communication apps), irrespective of whether the software is obtained separately or bundled with hardware, shall configure the software so that privacy is protected, the cross- domain tracking and the storing of information on the terminal equipment by third parties is prohibited by default. In addition, providers of such software are required to offer sufficiently granular options to consent to each distinct category of purposes. These distinct categories include, at least, the following categories: (i) tracking for commercial purposes or for direct marketing for non-commercial purposes (behavioural advertising); (ii) tracking for personalised content; (iii) tracking for analytical purposes; (iv) tracking of location data; (v) providing personal data to third parties (including providing unique identifiers to match with personal data held by third parties) No consent is required for information that is collected from end-users’ terminal equipment when it is strictly necessary for providing an information society service requested by the end-user, for example in order to adapt the screen size to the device, or to remember items in a shopping basket. Web browsers, operating systems and communication apps should allow the end-user to consent to cookies or other information that is stored on, or read from terminal equipment (including the browser on that equipment) by a specific website or originator even when the general settings prevent the interference and vice versa. With regard to a specific party, web browsers and communication apps should also allow users to separately consent to internet-wide tracking. Privacy settings should also include options to allow the user to decide for example, whether multimedia players, interactive programming language viewers, or similar software can be executed, if a website can collect geo-location data from the user, or if it can access specific hardware such as a webcam or microphone. Such privacy settings should be presented in an easily visible and intelligible manner, and at the moment of installation or first use, users should be informed about the possibility to change the default privacy settings among the various options. Information provided should not dissuade users from selecting higher privacy settings and should include relevant information about the risks associated to allowing cross-domain trackers, including the compilation of long-term records of individuals’ browsing histories and the use of such records to send targeted advertising or sharing with more third parties. Software manufacturers should be required to provide easy ways for users to change the privacy settings at any time during use and to allow the user to make exceptions for or to specify for such services websites trackers and cookies are always or never allowed.

– gelöscht / deleted – 

(25) However, such devices, for instance so-called „cookies“, can be a legitimate and useful tool, for example, in analysing the effectiveness of website design and advertising, and in verifying the identity of users engaged in on-line transactions. Where such devices, for instance cookies, are intended for a legitimate purpose, such as to facilitate the provision of information society services, their use should be allowed on condition that users are provided with clear and precise information in accordance with Directive 95/46/EC about the purposes of cookies or similar devices so as to ensure that users are made aware of information being placed on the terminal equipment they are using. Users should have the opportunity to refuse to have a cookie or similar device stored on their terminal equipment. This is particularly important where users other than the original user have access to the terminal equipment and thereby to any data containing privacy-sensitive information stored on such equipment. Information and the right to refuse may be offered once for the use of various devices to be installed on the user’s terminal equipment during the same connection and also covering any further use that may be made of those devices during subsequent connections. The methods for giving information, offering a right to refuse or requesting consent should be made as user-friendly as possible. Access to specific website content may still be made conditional on the well-informed acceptance of a cookie or similar device, if it is used for a legitimate purpose.

(24)  For web browsers to be able to obtain end-users’ consent as defined under Regulation (EU) 2016/679, for example, to the storage of third party tracking cookies, they should, among others, require a clear affirmative action from the end-user of terminal equipment to signify his or her freely given, specific informed, and unambiguous agreement to the storage and access of such cookies in and from the terminal equipment. Such action may be considered to be affirmative, for example, if end-users are required to actively select ‘accept third party cookies’ to confirm their agreement and are given the necessary information to make the choice. To this end, it is necessary to require providers of software enabling access to internet that, at the moment of installation, end-users are informed about the possibility to choose the privacy settings among the various options and ask them to make a choice. Information provided should not dissuade end-users from selecting higher privacy settings and should include relevant information about the risks associated to allowing third party cookies to be stored in the computer, including the compilation of long-term records of individuals‘ browsing histories and the use of such records to send targeted advertising. Web browsers are encouraged to provide easy ways for end-users to change the privacy settings at any time during use and to allow the user to make exceptions for or to whitelist certain websites or to specify for which websites (third) party cookies are always or never allowed.

– gelöscht / deleted –

– gelöscht / deleted –

(25)  Accessing electronic communications networks requires the regular emission of certain data packets in order to discover or maintain a connection with the network or other devices on the network. Furthermore, devices must have a unique address assigned in order to be identifiable on that network.

Wireless and cellular telephone standards similarly involve the emission of active signals containing unique identifiers such as a MAC address, the IMEI (International Mobile Station Equipment Identity), the IMSI etc. A single wireless base station (i.e. a transmitter and receiver), such as a wireless access point, has a specific range within which such information may be captured. Service providers have emerged who offer tracking services based on the scanning of equipment related information with diverse functionalities, including people counting, providing data on the number of people waiting in line, ascertaining the number of people in a specific area, etc. This information may be used for more intrusive purposes, such as to send commercial messages to end-users, for example when they enter stores, with personalized offers. While some of these functionalities do not entail high privacy risks, others do, for example, those involving the tracking of individuals over time, including repeated visits to specified locations. Providers engaged in such practices should display prominent notices located on the edge of the area of coverage informing end-users prior to entering the defined area that the technology is in operation within a given perimeter, the purpose of the tracking, the person responsible for it and the existence of any measure the end-user of the terminal equipment can take to minimize or stop the collection. Additional information should be provided where personal data are collected pursuant to Article 13 of Regulation (EU) 2016/679.

Wireless and cellular telephone standards similarly involve the emission of active signals containing unique identifiers such as a MAC address, the IMEI (International Mobile Station Equipment Identity), the IMSI etc. A single wireless base station (i.e. a transmitter and receiver), such as a wireless access point, has a specific range within which such information may be captured. Service providers have emerged who offer tracking services based on the scanning of equipment related information with diverse functionalities, including people counting, providing data on the number of people waiting in line, ascertaining the number of people in a specific area, etc. This information may be used for more intrusive purposes, such as to send commercial messages to users, for example when they enter stores, with personalised offers. While some of these functionalities do not entail high privacy risks, others do, for example, those involving the tracking of individuals over time, including repeated visits to specified locations. Providers engaged in such practices should either obtain the user’s consent or anonymise the data immediately while limiting the purpose to mere statistical counting within a limited time and space and offering effective opt-out possibilities.

Wireless and cellular telephone standards similarly involve the emission of active signals containing unique identifiers such as a MAC address, the IMEI (International Mobile Station Equipment Identity), the IMSI, the WiFi signal etc. A single wireless base station (i.e. a transmitter and receiver), such as a wireless access point, has a specific range within which such information may be captured. Service providers have emerged who offer physical movements‘ tracking services based on the scanning of equipment related information with diverse functionalities, including people counting, such as providing data on the number of people waiting in line, ascertaining the number of people in a specific area, referred to as statistical counting for which the consent of end-users is not needed, provided that such counting is limited in time and space to the extent necessary for this purpose. Providers should also apply appropriate technical and organisations measures to ensure the level if security appropriate to the risks, including pseudonymisation of the data and making it anonymous or erase it as soon it is not longer needed for this purpose. Providers engaged in such practices should display prominent notices located on the edge of the area of coverage informing end-users prior to entering the defined area that the technology is in operation within a given perimeter, the purpose of the tracking, the person responsible for it and the existence of any measure the end-user of the terminal equipment can take to minimize or stop the collection. Additional information should be provided where personal data are collected pursuant to Article 13 of Regulation (EU) 2016/679. This information may be used for more intrusive purposes, which should not be considered statistical counting, such as to send commercial messages to end-users, for example when they enter stores, with personalized offers locations, subject to the conditions laid down in this Regulation, as well as the tracking of individuals over time, including repeated visits to specified locations.

(25a) Processing the information emitted by the terminal equipment to enable it to connect to another device would be permitted if the end-user has given consent or if it is necessary for the provision of a service requested by the end-user. This kind of processing might be necessary for example for the provision of some IoT related services. 

(26)  When the processing of electronic communications data by providers of electronic communications services falls within its scope, this Regulation should provide for the possibility for the Union or Member States under specific conditions to restrict by law certain obligations and rights when such a restriction constitutes a necessary and proportionate measure in a democratic society to safeguard specific public interests, including national security, defence, public security and 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 and other important objectives of general public interest of the Union or of a Member State, in particular an important economic or financial interest of the Union or of a Member State, or a monitoring, inspection or regulatory function connected to the exercise of official authority for such interests. Therefore, this Regulation should not affect the ability of Member States to carry out lawful interception of electronic communications or take other measures, if necessary and proportionate to safeguard the public interests mentioned above, in accordance with the Charter of Fundamental Rights of the European Union and the European Convention for the Protection of Human Rights and Fundamental Freedoms, as interpreted by the Court of Justice of the European Union and of the European Court of Human Rights. Providers of electronic communications services should provide for appropriate procedures to facilitate legitimate requests of competent authorities, where relevant also taking into account the role of the representative designated pursuant to Article 3(3).

(26)  When the processing of electronic communications data by providers of electronic communications services falls within its scope, this Regulation should provide for the possibility for the Union or Member States under specific conditions to restrict by law certain obligations and rights when such a restriction constitutes a necessary and proportionate measure in a democratic society to safeguard specific public interests, including national security, defence, public security and 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 Therefore, this Regulation should not affect the ability of Member States to carry out lawful interception of electronic communications or take other measures, if necessary and proportionate to safeguard the public interests mentioned above, in accordance with the Charter of Fundamental Rights of the European Union and the European Convention for the Protection of Human Rights and Fundamental Freedoms, as interpreted by the Court of Justice of the European Union and of the European Court of Human Rights.

(26) When the processing of electronic communications data by providers of electronic communications services falls within its scope, this Regulation should provide for the possibility for the Union or Member States under specific conditions to restrict by law certain obligations and rights, including by way of derogations, when such a restriction constitutes a necessary and proportionate measure in a democratic society to safeguard specific public interests, including public security and 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 and other important objectives of general public interest of the Union or of a Member State, in particular an important economic or financial interest of the Union or of a Member State, or a monitoring, inspection or regulatory function connected to the exercise of official authority for such interests. Therefore, this Regulation should not affect the ability of Member States to carry out lawful interception of electronic communications, including by requiring providers to enable and assist competent authorities in carrying out lawful interceptions, or take other measures, such as legislative measures providing for the retention of data for a limited period of time, if necessary and proportionate to safeguard the public interests mentioned above, in accordance with the Charter of Fundamental Rights of the European Union and the European Convention for the Protection of Human Rights and Fundamental Freedoms, as interpreted by the Court of Justice of the European Union and of the European Court of Human Rights. Providers of electronic communications services should provide for appropriate procedures to facilitate legitimate requests of competent authorities, where relevant also taking into account the role of the representative designated pursuant to Article 3(3).

(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.

(26 a)  In order to safeguard the security and integrity of networks and services, the use of end-to-end encryption should be promoted and, where necessary, be mandatory in accordance with the principles of security and privacy by design. Member States should not impose any obligation on encryption providers, on providers of electronic communications services or on any other organisations (at any level of the supply chain) that would result in the weakening of the security of their networks and services, such as the creation or facilitation of “backdoors”.

(27) As regards calling line identification, it is necessary to protect the right of the calling party to withhold the presentation of the identification of the line from which the call is being made and the right of the called party to reject calls from unidentified lines. Certain end-users, in particular help lines, and similar organisations, have an interest in guaranteeing the anonymity of their callers. As regards connected line identification, it is necessary to protect the right and the legitimate interest of the called party to withhold the presentation of the identification of the line to which the calling party is actually connected.

(34) It is necessary, as regards calling line identification, to protect the right of the calling party to withhold the presentation of the identification of the line from which the call is being made and the right of the called party to reject calls from unidentified lines. There is justification for overriding the elimination of calling line identification presentation in specific cases. Certain subscribers, in particular help lines and similar organisations, have an interest in guaranteeing the anonymity of their callers. It is necessary, as regards connected line identification, to protect the right and the legitimate interest of the called party to withhold the presentation of the identification of the line to which the calling party is actually connected, in particular in the case of forwarded calls. The providers of publicly available electronic communications services should inform their subscribers of the existence of calling and connected line identification in the network and of all services which are offered on the basis of calling and connected line identification as well as the privacy options which are available. This will allow the subscribers to make an informed choice about the privacy facilities they may want to use. The privacy options which are offered on a per-line basis do not necessarily have to be available as an automatic network service but may be obtainable through a simple request to the provider of the publicly available electronic communications service.

(28)There is justification for overriding the elimination of calling line identification presentation in specific cases.

⬇︎⬇︎

End-users‘ rights to privacy with regard to calling line identification should be restricted where this is necessary to trace nuisance calls and with regard to calling line identification and location data where this is necessary to allow emergency services, such as eCall, to carry out their tasks as effectively as possible. 

– unverändert / unchanged – 

End-users‘ rights to privacy with regard to calling line identification should be restricted where this is necessary to trace malicious or nuisance calls and with regard to calling line identification and location data where this is necessary to allow emergency services, such as eCall, to carry out their tasks as effectively as possible. Location information established by the terminal equipment, using its built-in Global Navigation Satellite Systems (GNSS) capabilities or other types of terminal equipment based location data, such as location data derived from the WiFi functionality, may supplement the location data supplied by providers of number-based interpersonal communications services when a call is made to emergency services. The temporary denial or absence of consent of an end-user to access location data provided by the terminal equipment GNSS, for example, because location settings are turned off, shall not prevent the transfer of such information to emergency services for the purposes of facilitating access to such services. Directive 2014/53/EU empowers the Commission to adopt delegated acts requiring that specific categories or classes of radio equipment support certain features ensuring access to emergency services. 

(29)Technology exists that enables providers of electronic communications services to limit the reception of unwanted calls by end-users in different ways, including blocking silent calls and other fraudulent and nuisance calls. Providers of publicly available number-based interpersonal communications services should deploy this technology and protect end-users against nuisance calls and free of charge. Providers should ensure that end-users are aware of the existence of such functionalities, for instance, by publicising the fact on their webpage.

– unverändert / unchanged – 

(29) Technology exists that enables providers of electronic communications services to limit the reception of unwanted, malicious or nuisance calls by end-users in different ways, including blocking silent calls and other unwanted, malicious and nuisance calls, such as calls originating from invalid numbers, i.e. numbers that do not exist in the numbering plan, valid numbers that are not allocated to a provider of a number-based interpersonal communications service, and valid numbers that are allocated but not assigned to an end-user. Providers of number-based interpersonal communications services should deploy this technology and protect end-users against such calls free of charge. Providers should ensure that end-users are aware of the existence of such functionalities, for instance, by publicising the fact on their webpage.

(30)  Publicly available directories of end-users of electronic communications services are widely distributed. Publicly available directories means any directory or service containing end-users information such as phone numbers (including mobile phone numbers), email address contact details and includes inquiry services. The right to privacy and to protection of the personal data of a natural person requires that end-users that are natural persons are asked for consent before their personal data are included in a directory. The legitimate interest of legal entities requires that end-users that are legal entities have the right to object to the data related to them being included in a directory.

(30)  Publicly available directories of end-users of electronic communications services are widely distributed. Publicly available directories means any directory or service containing end-users information such as phone numbers (including mobile phone numbers), email address contact details and includes inquiry services. The right to privacy and to protection of the personal data of a natural person requires that users are asked for consent before their personal data are included in a directory. The legitimate interest of legal entities requires that end-users that are legal entities have the right to object to the data related to them being included in a directory. The consent should be collected by the electronic communications service provider at the moment of signing the contract for such service. Natural persons acting in a professional capacity, such as independent professionals, operators of small businesses or freelancers, shall be equated with legal persons, as regards their data related to their professional capacity.

(30) Publicly available directories means any directory or service containing information on end-users of number-based interpersonal communication services such as name, phone numbers (including mobile phone numbers), email address, home address and includes inquiry services, the main function of which is to enable to identify such end-users. End-users that are natural persons should be asked for consent before their personal data are included in a directory, unless Member States provide that such end-users have the right to object to inclusion of their personal data. The legitimate interest of legal persons requires that end-users that are legal persons have the right to object to the data related to them being included in a directory. End-users who are natural persons acting in a professional capacity should be treated as legal persons for the purpose of the provisions on publicly available directories.

(38) Directories of subscribers to electronic communications services are widely distributed and public. The right to privacy of natural persons and the legitimate interest of legal persons require that subscribers are able to determine whether their personal data are published in a directory and if so, which. Providers of public directories should inform the subscribers to be included in such directories of the purposes of the directory and of any particular usage which may be made of electronic versions of public directories especially through search functions embedded in the software, such as reverse search functions enabling users of the directory to discover the name and address of the subscriber on the basis of a telephone number only.

(31)  If end-users that are natural persons give their consent to their data being included in such directories, they should be able to determine on a consent basis which categories of personal data are included in the directory (for example name, email address, home address, user name, phone number). In addition, providers of publicly available directories should inform the end-users of the purposes of the directory and of the search functions of the directory before including them in that directory. End-users should be able to determine by consent on the basis of which categories of personal data their contact details can be searched. The categories of personal data included in the directory and the categories of personal data on the basis of which the end-user’s contact details can be searched should not necessarily be the same.

(31)  If users give their consent to their data being included in such directories, they should be able to determine on a consent basis which categories of personal data are included in the directory (for example name, email address, home address, user name, phone number). In addition, electronic communications service providers should inform the users of the purposes of the directory and of the search functions of the directory before including them in that directory. Users should be able to determine by consent on the basis of which categories of personal data their contact details can be searched. The categories of personal data included in the directory and the categories of personal data on the basis of which the user’s contact details can be searched should not necessarily be the same. The providers or publicly available directories shall provide information about the search functions, as well as if new options and functions of the directories are available in the publicly available directories and provide the users the option to disable such functions.

(31) Providers of number-based interpersonal communications services should inform the end-users who are natural persons of the search functions of the directory and obtain their consent before enabling such search functions related to their personal data. The categories of personal data included in the directory and the categories of personal data on the basis of which the end-user’s contact details can be searched should not necessarily be the same.

(39) The obligation to inform subscribers of the purpose(s) of public directories in which their personal data are to be included should be imposed on the party collecting the data for such inclusion. Where the data may be transmitted to one or more third parties, the subscriber should be informed of this possibility and of the recipient or the categories of possible recipients. Any transmission should be subject to the condition that the data may not be used for other purposes than those for which they were collected. If the party collecting the data from the subscriber or any third party to whom the data have been transmitted wishes to use the data for an additional purpose, the renewed consent of the subscriber is to be obtained either by the initial party collecting the data or by the third party to whom the data have been transmitted.

(32)  In this Regulation, direct marketing refers to any form of advertising by which a natural or legal person sends direct marketing communications directly to one or more identified or identifiable end-users using electronic communications services. In addition to the offering of products and services for commercial purposes, this should also include messages sent by political parties that contact natural persons via electronic communications services in order to promote their parties. The same should apply to messages sent by other non-profit organisations to support the purposes of the organisation.

(32)  In this Regulation, direct marketing refers to any form of advertising by which a natural or legal person sends direct marketing communications directly to one or more identified or identifiable end-users using electronic communications services, regardless of the form it takes. In addition to the offering of products and services for commercial purposes, this should also include messages sent by political parties that contact natural persons via electronic communications services in order to promote their parties. The same should apply to messages sent by other non-profit organisations to support the purposes of the organisation.

(32) In this Regulation, direct marketing communications refers to any form of advertising sent by a natural or legal person directly to one or more specific end-users using publicly available electronic communications services. The provisions on direct marketing communications do should not apply to other form of marketing or advertising that is not sent directly to any specific end-user for reception by that end-user at addresses, number or other contact details, e.g. the display of advertising on a visited website or within an information society service requested by that end-user. In addition to direct communications advertising for the offering of products and services for commercial purposes, Member States may decide that direct marketing communications may include direct marketing communications sent by political parties that contact natural persons via publicly available electronic communications services in order to promote their parties. The same applies to messages sent by other non-profit organisations to support the purposes of the organisation.

(33)  Safeguards should be provided to protect end-users against unsolicited communications for direct marketing purposes, which intrude into the private life of end-users. The degree of privacy intrusion and nuisance is considered relatively similar independently of the wide range of technologies and channels used to conduct these electronic communications, whether using automated calling and communication systems, instant messaging applications, emails, SMS, MMS, Bluetooth, etc. It is therefore justified to require that consent of the end-user is obtained before commercial electronic communications for direct marketing purposes are sent to end-users in order to effectively protect individuals against the intrusion into their private life as well as the legitimate interest of legal persons. Legal certainty and the need to ensure that the rules protecting against unsolicited electronic communications remain future-proof justify the need to define a single set of rules that do not vary according to the technology used to convey these unsolicited communications, while at the same time guaranteeing an equivalent level of protection for all citizens throughout the Union. However, it is reasonable to allow the use of e-mail contact details within the context of an existing customer relationship for the offering of similar products or services. Such possibility should only apply to the same company that has obtained the electronic contact details in accordance with Regulation (EU) 2016/679.

(33)  Safeguards should be provided to protect end-users against unsolicited communications or direct marketing, which intrude into the private life of end-users. The degree of privacy intrusion and nuisance is considered relatively similar independently of the wide range of technologies and channels used to conduct these electronic communications, whether using automated calling and communications systems, semi-automated systems, instant messaging applications, faxes, e-mails, SMS, MMS, Bluetooth, etc. It is therefore justified to require that consent of the end-user is obtained before commercial electronic communications for direct marketing purposes are sent to end-users in order to effectively protect individuals against the intrusion into their private life as well as the legitimate interest of legal persons. Legal certainty and the need to ensure that the rules protecting against unsolicited electronic communications remain future-proof and justify the need to define a single set of rules that do not vary according to the technology used to convey these unsolicited communications, while at the same time guaranteeing an equivalent high level of protection for all end-users throughout the Union. However, it is reasonable to allow the use of e-mail contact details within the context of an existing customer relationship for the offering of other products or services. Such possibility should only apply to the same company that has obtained the electronic contact details in accordance with Regulation (EU) 2016/679.

(33) Safeguards should be provided to protect end-users against direct marketing communications, which intrude into the privacy of end-users. The degree of privacy intrusion and nuisance is considered relatively similar independently of the wide range of technologies and channels used to conduct these electronic communications, whether using automated calling and communication systems, instant messaging applications, emails, SMS, MMS, Bluetooth, etc. It is therefore justified to require that consent of the end-users who are natural persons is obtained before direct marketing communications are sent to them in order to effectively protect them against the intrusion into their private life. Legal certainty and the need to ensure that the rules protecting against direct marketing communications remain future-proof justify the need to define in principle a single set of rules that do not vary according to the technology used to convey these direct marketing communications, while at the same time guaranteeing an equivalent level of protection for all citizens throughout the Union. However, it is reasonable to allow the use of contact details for electronic message within the context of an existing customer relationship for the offering of similar products or services. Such possibility should only apply to the same company that has obtained the contact details for electronic message in accordance with Regulation (EU) 2016/679.

(40) Safeguards should be provided for subscribers against intrusion of their privacy by unsolicited communications for direct marketing purposes in particular by means of automated calling machines, telefaxes, and e-mails, including SMS messages. These forms of unsolicited commercial communications may on the one hand be relatively easy and cheap to send and on the other may impose a burden and/or cost on the recipient. Moreover, in some cases their volume may also cause difficulties for electronic communications networks and terminal equipment. For such forms of unsolicited communications for direct marketing, it is justified to require that prior explicit consent of the recipients is obtained before such communications are addressed to them. The single market requires a harmonised approach to ensure simple, Community-wide rules for businesses and users.

(41) Within the context of an existing customer relationship, it is reasonable to allow the use of electronic contact details for the offering of similar products or services, but only by the same company that has obtained the electronic contact details in accordance with Directive 95/46/EC. When electronic contact details are obtained, the customer should be informed about their further use for direct marketing in a clear and distinct manner, and be given the opportunity to refuse such usage. This opportunity should continue to be offered with each subsequent direct marketing message, free of charge, except for any costs for the transmission of this refusal.

(33a) Voice-to-voice direct marketing calls that do not involve the use of automated calling and communication systems are more costly for the sender and impose no financial costs on end-users. Member States should therefore be able to establish and or maintain national systems which allow all or certain types of voice-to-voice calls to end-users who are natural persons and who have not objected, including in the context of an existing customer relationship.

(34) When end-users have provided their consent to receiving unsolicited communications for direct marketing purposes, they should still be able to withdraw their consent at any time in an easy manner. To facilitate effective enforcement of Union rules on unsolicited messages for direct marketing, it is necessary to prohibit the masking of the identity and the use of false identities, false return addresses or numbers while sending unsolicited commercial communications for direct marketing purposes. Unsolicited marketing communications should therefore be clearly recognizable as such and should indicate the identity of the legal or the natural person transmitting the communication or on behalf of whom the communication is transmitted and provide the necessary information for recipients to exercise their right to oppose to receiving further written and/or oral marketing messages.

– unverändert / unchanged – 

(34) When end-users who are natural persons have provided their consent to receiving direct marketing communications, they should still be able to withdraw their consent at any time in an easy manner and without any cost to them. To facilitate effective enforcement of Union rules on direct marketing communications, it is necessary to prohibit the masking of the identity and the use of false identities, false return addresses or numbers while sending direct marketing communications. Direct marketing communications should therefore be clearly recognizable as such and should indicate the identity of the legal or the natural person sending or the communication and, where applicable, on whose behalf the communication is sent and provide the necessary information for end-users who are natural persons to exercise their right to withdraw their consent to receiving further direct marketing communications, such as valid contact details (e.g. link, e-mail address) which can be easily used by end-users who are natural persons to withdraw their consent free of charge.

(43) To facilitate effective enforcement of Community rules on unsolicited messages for direct marketing, it is necessary to prohibit the use of false identities or false return addresses or numbers while sending unsolicited messages for direct marketing purposes.

(35) In order to allow easy withdrawal of consent, legal or natural persons conducting direct marketing communications by email should present a link, or a valid electronic mail address, which can be easily used by end-users to withdraw their consent. Legal or natural persons conducting direct marketing communications through voice-to-voice calls and through calls by automating calling and communication systems should display their identity line on which the company can be called or present a specific code identifying the fact that the call is a marketing call.

– unverändert / unchanged – 

(35) Legal or natural persons conducting direct marketing communications through voice-to-voice calls and through calls by automating calling and communication systems should present their identity line on which the company can be called. Member States are encouraged to introduce by means of national law a specific code or prefix identifying the fact that the call is a direct marketing call to improve the tools provided for the end-users in order to protect their privacy in more efficient manner. Using a specific code or prefix should not relieve the legal or natural persons sending direct marketing call from the obligation to present their calling line identification. 

(44) Certain electronic mail systems allow subscribers to view the sender and subject line of an electronic mail, and also to delete the message, without having to download the rest of the electronic mail’s content or any attachments, thereby reducing costs which could arise from downloading unsolicited electronic mails or attachments. These arrangements may continue to be useful in certain cases as an additional tool to the general obligations established in this Directive.

(36)  Voice-to-voice direct marketing calls that do not involve the use of automated calling and communication systems, given that they are more costly for the sender and impose no financial costs on end-users. Member States should therefore be able to establish and or maintain national systems only allowing such calls to end-users who have not objected.

(36)  Voice-to-voice direct marketing calls that do not involve the use of automated calling and communications systems, given that they are more costly for the sender and impose no financial costs on end-users, justify the obligation for Member States to establish and or maintain national systems only allowing such calls to end-users who have not objected.

– forgotten? –

(42) Other forms of direct marketing that are more costly for the sender and impose no financial costs on subscribers and users, such as person-to-person voice telephony calls, may justify the maintenance of a system giving subscribers or users the possibility to indicate that they do not want to receive such calls. Nevertheless, in order not to decrease existing levels of privacy protection, Member States should be entitled to uphold national systems, only allowing such calls to subscribers and users who have given their prior consent.

(37)  Service providers who offer electronic communications services should inform end- users of measures they can take to protect the security of their communications for instance by using specific types of software or encryption technologies. The requirement to inform end-users of particular security risks does not discharge a service provider from the obligation to take, at its own costs, appropriate and immediate measures to remedy any new, unforeseen security risks and restore the normal security level of the service. The provision of information about security risks to the subscriber should be free of charge. Security is appraised in the light of Article 32 of Regulation (EU) 2016/679.

(37)  Service providers who offer electronic communications services should process electronic communications data in such a way as to prevent unauthorised processing, including access, or alteration. They should ensure that such unauthorised access or alteration can be detected, and also ensure that electronic communications data are protected by using state-of the art software and cryptographic methods including encryption technologies. Service providers should also inform users of measures they can take to protect the security of their communications for instance by using specific types of software or encryption technologies. The requirement to inform end-users of particular security risks does not discharge a service provider from the obligation to take, at its own costs, appropriate and immediate measures to remedy any new, unforeseen security risks and restore the normal security level of the service. The provision of information about security risks to the subscriber should be free of charge. Security is appraised in the light of Article 32 of Regulation (EU) 2016/679. The obligations of Article 40 of the [European Electronic Communications Code] should apply to all services within the scope of this Regulation as regards the security of networks and services and related security obligations thereto.

– gelöscht / deleted – 

(20) Service providers should take appropriate measures to safeguard the security of their services, if necessary in conjunction with the provider of the network, and inform subscribers of any special risks of a breach of the security of the network. Such risks may especially occur for electronic communications services over an open network such as the Internet or analogue mobile telephony. It is particularly important for subscribers and users of such services to be fully informed by their service provider of the existing security risks which lie outside the scope of possible remedies by the service provider. Service providers who offer publicly available electronic communications services over the Internet should inform users and subscribers of measures they can take to protect the security of their communications for instance by using specific types of software or encryption technologies. The requirement to inform subscribers of particular security risks does not discharge a service provider from the obligation to take, at its own costs, appropriate and immediate measures to remedy any new, unforeseen security risks and restore the normal security level of the service. The provision of information about security risks to the subscriber should be free of charge except for any nominal costs which the subscriber may incur while receiving or collecting the information, for instance by downloading an electronic mail message. Security is appraised in the light of Article 17 of Directive 95/46/EC.

(38)  To ensure full consistency with Regulation (EU) 2016/679, the enforcement of the provisions of this Regulation should be entrusted to the same authorities responsible for the enforcement of the provisions Regulation (EU) 2016/679 and this Regulation relies on the consistency mechanism of Regulation (EU) 2016/679. Member States should be able to have more than one supervisory authority, to reflect their constitutional, organisational and administrative structure. The supervisory authorities should also be responsible for monitoring the application of this Regulation regarding electronic communications data for legal entities. Such additional tasks should not jeopardise the ability of the supervisory authority to perform its tasks regarding the protection of personal data under Regulation (EU) 2016/679 and this Regulation. Each supervisory authority should be provided with the additional financial and human resources, premises and infrastructure necessary for the effective performance of the tasks under this Regulation.

(38)  To ensure full consistency with Regulation (EU) 2016/679, The enforcement of the provisions of this Regulation should be entrusted to the same authorities responsible for the enforcement of the provisions Regulation (EU) 2016/679 and this Regulation relies on the consistency mechanism of Regulation (EU) 2016/679. Member States should be able to have more than one supervisory authority, to reflect their constitutional, organisational and administrative structure. The supervisory authorities should also be responsible for monitoring the application of this Regulation regarding electronic communications data for legal entities. Where more than one supervisory authority is established in a Member State, such authorities should cooperate with each other. They should also cooperate with the authorities appointed to enforce the European Electronic Communications Code and other relevant enforcement authorities, such as the authorities tasked with consumer protection. Such additional tasks should not jeopardise the ability of the supervisory authority to perform its tasks regarding the protection of personal data under Regulation (EU) 2016/679 and this Regulation. Each supervisory authority should be provided with the additional financial and human resources, premises and infrastructure necessary for the effective performance of the tasks under this Regulation.

(38) Member States should be able to have more than one supervisory authority, to reflect their constitutional, organisational and administrative structure. The designation of supervisory authorities responsible for the monitoring of the application of this Regulation cannot affect the right of natural persons to have compliance with rules regarding the protection of personal data subject to control by an independent authority in accordance with Article 8(3) of the Charter as interpreted by the Court. End-users who are legal persons should have the same rights as end-users who are natural persons regarding any supervisory authority entrusted to monitor any provisions of this Regulation. Each supervisory authority should be provided with the additional financial and human resources, premises and infrastructure necessary for the effective performance of the additional tasks designated under this Regulation. 

(38a)  The enforcement of the provisions of this Regulation often requires cooperation between the national supervisory authorities of two or more Member States, for example in combating interferences with the confidentiality of the terminal equipment. In order to ensure a smooth and rapid cooperation in such cases, the procedures of the cooperation and consistency mechanism established under Regulation 2016/679/EU should apply to Chapter II of this Regulation. Therefore, the European Data Protection Board should contribute to the consistent application of this Regulation throughout the Union, in particular by issuing opinions in the context of the consistency mechanisms or by adopting binding decisions in the context of dispute resolution as provided in Article 65 of Regulation 2016/679/EU, as regards Chapter II of this Regulation.

(39)  Each supervisory authority should be competent on the territory of its own Member State to exercise the powers and to perform the tasks set forth in this Regulation. In order to ensure consistent monitoring and enforcement of this Regulation throughout the Union, the supervisory authorities should have the same tasks and effective powers in each Member State, without prejudice to the powers of prosecutorial authorities under Member State law, to bring infringements of this Regulation to the attention of the judicial authorities and engage in legal proceedings. Member States and their supervisory authorities are encouraged to take account of the specific needs of micro, small and medium-sized enterprises in the application of this Regulation.

(39)  Each supervisory authority should be competent on the territory of its own Member State to exercise the powers and to perform the tasks, including adopting binding decisions, set forth in this Regulation. In order to ensure consistent monitoring and enforcement of this Regulation throughout the Union, the supervisory authorities should have the same tasks and effective powers in each Member State, including powers of investigation, corrective powers and sanctions, and authorisation and advisory powers, without prejudice to the powers of prosecutorial authorities under Member State law, to bring infringements of this Regulation to the attention of the judicial authorities and engage in legal proceedings. Member States and their supervisory authorities are encouraged to take account of the specific needs of micro, small and medium-sized enterprises in the application of this Regulation.

(39) Each supervisory authority should be competent on the territory of its own Member State to exercise the powers and to perform the tasks set forth in this Regulation. Member States and their supervisory authorities are encouraged to take account of the specific needs of micro, small and medium-sized enterprises in the application of this Regulation. 

(40)In order to strengthen the enforcement of the rules of this Regulation, each supervisory authority should have the power to impose penalties including administrative fines for any infringement of this Regulation, in addition to, or instead of any other appropriate measures pursuant to this Regulation. This Regulation should indicate infringements and the upper limit and criteria for setting the related administrative fines, which should be determined by the competent supervisory authority in each individual case, taking into account all relevant circumstances of the specific situation, with due regard in particular to the nature, gravity and duration of the infringement and of its consequences and the measures taken to ensure compliance with the obligations under this Regulation and to prevent or mitigate the consequences of the infringement. For the purpose of setting a fine under this Regulation, an undertaking should be understood to be an undertaking in accordance with Articles 101 and 102 of the Treaty.

(41)  In order to fulfil the objectives of this Regulation, namely to protect the fundamental rights and freedoms of natural persons and in particular their right to the protection of personal data and to ensure the free movement of personal data within the Union, the power to adopt acts in accordance with Article 290 of the Treaty should be delegated to the Commission to supplement this Regulation. In particular, delegated acts should be adopted in respect of the information to be presented, including by means of standardised icons in order to give an easily visible and intelligible overview of the collection of information emitted by terminal equipment, its purpose, the person responsible for it and of any measure the end-user of the terminal equipment can take to minimise the collection. Delegated acts are also necessary to specify a code to identify direct marketing calls including those made through automated calling and communication systems.

(41)  In order to fulfil the objectives of this Regulation, namely to protect the fundamental rights and freedoms of natural persons in the provision and use of electronic communications services and in particular their right to respect of their private life and communications with regard to the processing of personal data and to ensure the free movement of personal data within the Union, the power to adopt acts in accordance with Article 290 of the Treaty should be delegated to the Commission to supplement this Regulation. In particular, delegated acts should be adopted in respect of the information to be presented, including by means of standardised icons in order to give an easily visible and intelligible overview of the collection of information emitted by terminal equipment, its purpose, the person responsible for it and of any measure the user of the terminal equipment can take to minimise the collection.

– unverändert / unchanged – 

It is of particular importance that the Commission carries out appropriate consultations and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement on Better Law-Making of 13 April 2016. In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States‘ experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts. 

Furthermore, in order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission when provided for by this Regulation. Those powers should be exercised in accordance with Regulation (EU) No 182/2011. 

Furthermore, in order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission when provided for by this Regulation. For instance, implementing measures are necessary to specify a code to identify direct marketing calls including those made through automated calling and communications systems. They are also necessary to establish the procedures and circumstances to override the elimination of the presentation of the calling line identification on a temporary basis where users request the tracing of malicious or nuisance calls Those powers should be exercised in accordance with Regulation (EU) No 182/2011.

– unverändert / unchanged – 

(42)Since the objective of this Regulation, namely to ensure an equivalent level of protection of natural and legal persons and the free flow of electronic communications data throughout the Union, cannot be sufficiently achieved by the Member States and can rather, by reason of the scale or effects of the action, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective. 

(43)Directive 2002/58/EC should be repealed. 

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