Privacy and electronic communications : the processing of personal data and the protection of privacy in the electronic communications sector

Abstract

Privacy has, for many years, been a matter of wide legal debate. However the need to recognize privacy throughout the history of man shows a necessity riot only to accept privacy as an essential requisite for humanity but also a commitment to safeguard it. This can be witnessed in the way privacy made its mark over many years, in many if not all legal structures worldwide. However the lack of specific definitions and legislation has led to many scholars and jurists to question whether the 'right to privacy' is actually a suitably defined legal concept. As data and telecommunications technologies converged in recent years, greater privacy risks for the individual have emerged. The European Union took up the challenge of regulating 'Electronic Communications' when it introduced a new 'technology-neutral' regulatory framework in 2002. Amongst the Directives introduced, EU Directive 2002/58/EC deals specifically with privacy and electronic communications. This Directive aims to achieve a fair balance between users' interest in the confidentiality of their private data, and communications providers and marketing companies' interest in the most efficient and cost-effective processing of such data. The extent to how much such processing is justified largely depends on the interpretation of the provisions of the directive dealing inter alia with anonymity, confidentiality and retention of data. The success of the directive however largely depends on the manner in which EU Member States adopt, interpret and enforce these regulations. This thesis analyses the manner and circumstances in which Maltese law seeks to protect the right to privacy within the electronic communications sector. The analysis concentrates on the above-mentioned EU Directive 2002/58/EC dealing with privacy and electronic communications and its relevance to Malta and its adoption in the year 2003 (in the light of Legal Notice 19 and 16 of 2003).