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Privacy online: is a separate Directive still needed?

Now that the General Data Protection Regulation has been completed, the European Commission is reviewing the ePrivacy Directive. This law was introduced in 2002 as part of the telecommunications framework, and it was recognised at the time that it was likely to be largely replaced by a future general privacy law.

That has taken longer than expected, and in the meantime technology has developed in ways that highlight the main problem of sector-specific law: defining the sector. The ePrivacy directive only covers telecommunications services so, for example, telephony providers are covered by it but internet telephony providers aren’t, while apps on your mobile phone can lawfully use location data in ways that the mobile network provider can’t (Bird & Bird’s analysis points out these and other inconsistencies ).

Our response therefore recommends two principles: that general privacy law (such as the GDPR) should be preferred, with sector-specific regulation only where there is a sector-specific problem; and that regulation should focus on privacy-harming behaviour, not on the specific technology that may currently be used to enable it. Otherwise inconsistent regulation, and inconsistent privacy protection, will continue to emerge as technologies and our use of them develop.

By Andrew Cormack

I'm Chief Regulatory Advisor at Jisc, responsible for keeping an eye out for places where our ideas, services and products might raise regulatory issues. My aim is to fix either the product or service, or the regulation, before there's a painful bump!

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