GDPR Article 95: Relationship with Directive 2002/58/EC

Article 95: The Facts

Article 95 tries to remove potential conflict between GDPR and the regulation of electronic communications by existing legislation. It consists of one sentence.

This Regulation shall not impose additional obligations on natural or legal persons in relation to processing in connection with the provision of publicly available electronic communications services in public communication networks in the Union in relation to matters for which they are subject to specific obligations with the same objective set out in Directive 2002/58/EC.

In another post I’ve written about the difference between natural and legal persons if you would like clarification on that.

There is potentially conflict between the GDPR and the Privacy and Electronic Communications Directive 2002/58/EC (and its subsequent amendment by Directive 2009/136/EC).  The key point here, though, is these older directives from 2002 & 2009 are due to be superseded in 2019 by a new ePrivacy Regulation that will be written very much with GDPR in mind and, we should expect, sort out a number of grey areas in the law.  Not least because the ePrivacy Regulation will override the GDPR in cases of conflict.

Graeme’s View

This upcoming regulation (offically, the ePrivacy Regulation on the Respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC) is not complete as of September 2018 and seems unlikely to be come into effect by the end of 2019.  While fully behind the proposals, as can be seen by this 2017 letter the European Data Protection Supervisor Giovanni Buttarelli (@buttarelli_g) does have some reservations about the draft legislation as it stands.

Since the regulation has not yet been finalised I won’t be going into detail about it here, but this article on i-scoop.eu does go into the development of this regulation in considerable detail.

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