2.2 Data Protection in the Electronic Communication Sector
2.2.1 Legislation for the Communications Sector
There are specific legal rules regarding the processing of personal data in the
electronic communications sector.
First of all, the right to secrecy of telecommunications, which is a fundamental
one, shall be pointed out. On EU level it is granted by Art. 7 EU of the Charter and
Art. 8 ECHR.
54 The ePR nominates the confidentiality of electronic communications
data in Art. 5. The German constitution guarantees the right to secrecy of telecommunications in Art. 10 GG. It is specified in sec. 88 para. 1 TKG.
The ePR contains specific legal rules regarding the processing of personal data in
the electronic communications sector. So does the TKG on national level. If the ePR
is adopted, all national legislation, including the TKG, concerning the communications sector will lose its legal ground. If the Regulation is not adopted, data
processing in the communications sector will be subject to the GDPR and to the
rules of the TKG intending to implement the ePD.
55 The following explanations are
based on the assumption that the ePR is adopted.
2.2.2 General Structure of Data Protection in the Communications
Sector
Personal Scope of Application
Subject to the rules of the ePR are entities providing electronic communications
services publicly available.
56 According to the technical progress, the ePR has a
broader scope of application than the ePD. It extends its application scope on overthe-top services (“OTTs”) as carrier networks such as Facebook and on data transfer
between machines (m2m-communication) as they form an essential part of Internetof-Things (“IoT”-) applications.
The Notion of “Communication Data”
Electronic communications data means electronic communications content and
electronic communications metadata, Art. 4 para. 3 lit. a) ePR.
54 Koenig et al. (2009), p. 525.
55 See for the relation between GDPR, ePR and national legislation Sect. 2.1.1.
56 Art. 2 para. 1, para. 2 lit. c) ePR.
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2.2.1 Legislation for the Communications Sector
There are specific legal rules regarding the processing of personal data in the
electronic communications sector.
First of all, the right to secrecy of telecommunications, which is a fundamental
one, shall be pointed out. On EU level it is granted by Art. 7 EU of the Charter and
Art. 8 ECHR.
54 The ePR nominates the confidentiality of electronic communications
data in Art. 5. The German constitution guarantees the right to secrecy of telecommunications in Art. 10 GG. It is specified in sec. 88 para. 1 TKG.
The ePR contains specific legal rules regarding the processing of personal data in
the electronic communications sector. So does the TKG on national level. If the ePR
is adopted, all national legislation, including the TKG, concerning the communications sector will lose its legal ground. If the Regulation is not adopted, data
processing in the communications sector will be subject to the GDPR and to the
rules of the TKG intending to implement the ePD.
55 The following explanations are
based on the assumption that the ePR is adopted.
2.2.2 General Structure of Data Protection in the Communications
Sector
Personal Scope of Application
Subject to the rules of the ePR are entities providing electronic communications
services publicly available.
56 According to the technical progress, the ePR has a
broader scope of application than the ePD. It extends its application scope on overthe-top services (“OTTs”) as carrier networks such as Facebook and on data transfer
between machines (m2m-communication) as they form an essential part of Internetof-Things (“IoT”-) applications.
The Notion of “Communication Data”
Electronic communications data means electronic communications content and
electronic communications metadata, Art. 4 para. 3 lit. a) ePR.
54 Koenig et al. (2009), p. 525.
55 See for the relation between GDPR, ePR and national legislation Sect. 2.1.1.
56 Art. 2 para. 1, para. 2 lit. c) ePR.
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