Convergence in communications and E-Privacy regulatory challenges, with a local perspective

Abstract

The European Commission announced plans on evaluation of Directive 2002/58/EC (E-Privacy Directive) towards a possible review, but following agreement on the General Data Protection Regulation. Those plans were most recently confirmed in the Digital Single Market Strategy. In it the Commission has also shown consideration for future directions of EU e-privacy legislation that correspond to earlier expressed initiatives, particularly in the EU electronic communications sector, toward expanding its scope. Such initiatives are prompted by progressive use of relevant online (information society) services and in particular OTT communication services that could be considered functionally equivalent to electronic communication services. In this paper authors legally assess the E-Privacy Directive in particular with respect to its current scope of application, while having in mind the declared aim to ensure equivalent protection of end-users' privacy and data protection rights - regardless of technology used to deliver the relevant service. To that effect they also examine selected e-privacy rules that typically relate to business operations of information society service providers, and other rules characterized by a very close connection to the general data protection framework, which is currently in review. While acknowledging that lacking clarity in Directive's scope may cause divergent transposition and regulatory practices in the EU the authors provide a local perspective on the issue, by analyzing the Croatian legal system implementing the Directive and selected provisions, including regulatory competencies and practice. Where necessary the authors propose local improvements to ensure more clarity and legal certainty for affected businesses and users, as well as general suggestions toward further research on the future of EU e-privacy legislation.