Q&As

What is the territorial scope of Directive 2002/58/EC (the EU ePrivacy Directive) and the Privacy and Electronic Communications (EC Directive) Regulations 2003?

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Published on LexisPSL on 11/12/2020

The following TMT Q&A provides comprehensive and up to date legal information covering:

  • What is the territorial scope of Directive 2002/58/EC (the EU ePrivacy Directive) and the Privacy and Electronic Communications (EC Directive) Regulations 2003?
  • The legislation
  • Relationship with data protection law
  • European Commission report
  • Business to business direct marketing rules across the EU
  • GDPR regimes
  • Further reading

What is the territorial scope of Directive 2002/58/EC (the EU ePrivacy Directive) and the Privacy and Electronic Communications (EC Directive) Regulations 2003?

The territorial scope of Directive 2002/58/EC (the EU ePrivacy Directive) and its UK implementing legislation, the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR 2003), SI 2003/2426 is unclear; a position caused primarily by the absence of specific wording in the legislation and exacerbated by conflicting opinions from various bodies.

In the context of most aspects of the EU ePrivacy Directive, including direct marketing, it is impossible to say with any certainty whether a ‘country of origin’ principle (ie UK laws) or a ‘country of destination’ principle (the local laws of the country in which the recipient is based), or some other rule, applies.

The analysis below explains why this is the case, and highlights some of the arguments put forward in support of each position.

However, until the issue is settled (which is likely only to be through the eventual introduction of a harmonised ePrivacy Regulation in Europe which is also brought onto the UK statute book—see Practice Note: ePrivacy Regulation—timeline), a prudent approach is not to assume that compliance with UK law will deal adequately with compliance in other jurisdictions. A risk assessment should be undertaken and, where necessary, local legal advice in relevant foreign jurisdictions should be sought.

The legislation

The EU ePrivacy Directive

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