Article 95 GDPR

← Article 95 - Relationship with Directive 2002/58/EC →
Chapter 1: General provisions Article 1: Subject-matter and objectives Article 2: Material scope Article 3: Territorial scope Article 4: Definitions Chapter 2: Principles Article 5: Principles relating to processing of personal data Article 6: Lawfulness of processing Article 7: Conditions for consent Article 8: Conditions applicable to child’s consent in relation to information society services Article 9: Processing of special categories of personal data Article 10: Processing of personal data relating to criminal convictions and offences Article 11: Processing which does not require identification Chapter 3: Rights of the data subject Article 12: Transparent information, communication and modalities for the exercise of the rights of the data subject Article 13: Information to be provided where personal data are collected from the data subject Article 14: Information to be provided where personal data have not been obtained from the data subject Article 15: Right of access by the data subject Article 16: Right to rectification Article 17: Right to erasure (‘right to be forgotten’) Article 18: Right to restriction of processing Article 19: Notification obligation regarding rectification or erasure of personal data or restriction of processing Article 20: Right to data portability Article 21: Right to object Article 22: Automated individual decision-making, including profiling Article 23: Restrictions Chapter 4: Controller and processor Article 24: Responsibility of the controller Article 25: Data protection by design and by default Article 26: Joint controllers Article 27: Representatives of controllers or processors not established in the Union Article 28: Processor Article 29: Processing under the authority of the controller or processor Article 30: Records of processing activities Article 31: Cooperation with the supervisory authority Article 32: Security of processing Article 33: Notification of a personal data breach to the supervisory authority Article 34: Communication of a personal data breach to the data subject Article 35: Data protection impact assessment Article 36: Prior consultation Article 37: Designation of the data protection officer Article 38: Position of the data protection officer Article 39: Tasks of the data protection officer Article 40: Codes of conduct Article 41: Monitoring of approved codes of conduct Article 42: Certification Article 43: Certification bodies Chapter 5: Transfers of personal data Article 44: General principle for transfers Article 45: Transfers on the basis of an adequacy decision Article 46: Transfers subject to appropriate safeguards Article 47: Binding corporate rules Article 48: Transfers or disclosures not authorised by Union law Article 49: Derogations for specific situations Article 50: International cooperation for the protection of personal data Chapter 6: Supervisory authorities Article 51: Supervisory authority Article 52: Independence Article 53: General conditions for the members of the supervisory authority Article 54: Rules on the establishment of the supervisory authority Article 55: Competence Article 56: Competence of the lead supervisory authority Article 57: Tasks Article 58: Powers Article 59: Activity reports Chapter 7: Cooperation and consistency Article 60: Cooperation between the lead supervisory authority and the other supervisory authorities concerned Article 61: Mutual assistance Article 62: Joint operations of supervisory authorities Article 63: Consistency mechanism Article 64: Opinion of the Board Article 65: Dispute resolution by the Board Article 66: Urgency procedure Article 67: Exchange of information Article 68: European Data Protection Board Article 69: Independence Article 70: Tasks of the Board Article 71: Reports Article 72: Procedure Article 73: Chair Article 74: Tasks of the Chair Article 75: Secretariat Article 76: Confidentiality Chapter 8: Remedies, liability and penalties Article 77: Right to lodge a complaint with a supervisory authority Article 78: Right to an effective judicial remedy against a supervisory authority Article 79: Right to an effective judicial remedy against a controller or processor Article 80: Representation of data subjects Article 81: Suspension of proceedings Article 82: Right to compensation and liability Article 83: General conditions for imposing administrative fines Article 84: Penalties Chapter 9: Specific processing situations Article 85: Processing and freedom of expression and information Article 86: Processing and public access to official documents Article 87: Processing of the national identification number Article 88: Processing in the context of employment Article 89: Safeguards and derogations relating to processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes Article 90: Obligations of secrecy Article 91: Existing data protection rules of churches and religious associations Chapter 10: Delegated and implementing acts Article 92: Exercise of the delegation Article 93: Committee procedure Chapter 11: Final provisions Article 94: Repeal of Directive 95: /46: /EC Article 95: Relationship with Directive 20: 02: /58: /EC Article 96: Relationship with previously concluded Agreements Article 97: Commission reports Article 98: Review of other Union legal acts on data protection Article 99: Entry into force and application

Legal Text

Article 95 - Relationship with Directive 2002/58/EC

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.

Relevant Recitals

Recital 173: Relationship to Directive 2002/58/EC

This Regulation should apply to all matters concerning the protection of fundamental rights and freedoms vis-à-vis the processing of personal data which are not subject to specific obligations with the same objective set out in Directive 2002/58/EC of the European Parliament and of the Council, including the obligations on the controller and the rights of natural persons. In order to clarify the relationship between this Regulation and Directive 2002/58/EC, that Directive should be amended accordingly. Once this Regulation is adopted, Directive 2002/58/EC should be reviewed in particular in order to ensure consistency with this Regulation.

Commentary

Article 95 GDPR regulates the relationship between the GDPR and Directive 2002/58/EC (the ‘e-Privacy Directive’ or ‘EPD’) which contains rules on the privacy and confidentiality of electronic communications.

According to Article 95, the GDPR should not impose additional obligations on natural or legal persons - in connection with the provision of publicly available electronic communication services in public communication networks - who are already subject to specific obligations with the same objective under the EPC.

Lex Specialis

Article 95 appears to follow the lex specialis rule of interpretation, whereby a specific law is taken to override a more general law on the same set of facts.

On the one hand, the application of this principle to the two laws is simple: the EPD specifically governs electronic communications, and can therefore be seen to supersede the GDPR, which contains more general provisions on data processing.

It should be noted, however, that in some ways, the EPD is not more specific than the GDPR. For example, whilst the GDPR only protects natural persons in relation to the processing of their personal data, the EPD also protects the legitimate interests of legal persons. Moreover, whilst the GDPR specifically protects personal data in accordance with Article 8 of the Charter, the EPD more broadly protects the privacy and confidentiality of electronic communications, in line with Article 7 of the Charter. In this way, as Kühling and Raab note, “the challenge in each case is to check whether the special provisions of Directive actually supersede the general rules of the GDPR.”

Natural or Legal Persons

Article 95 specifies that additional obligations must not be placed on natural or legal persons. This reflects the scope of the EPD, which in turn stems from Article 7 of the Charter. In particular, the case law of the CJEU has established that professional persons’ legal activities should not be excluded from the protection afforded by Article 7 of the Charter.

Publicly Available Electronic Communication Service

The processing subject to Article 95 GDPR must be connected to the provision of a ‘publicly available electronic communications service.’

The CJEU had previously ruled that a service may only be classified as an electronic communication service where it is responsible for the transmission of the signal over the communication network to the user. Whilst this will be the case for classic telecommunications services, it will not for those which operate on the open internet. However, under the European Code of Electronic Communication (‘EKEK’), this is no longer a requirement. The EKEK creates a distinct category of electronic communication service known as ‘interpersonal communication services.’ According to Kuhling and Raab, this category is “clearly tailored to internet communication services” such as Whatsapp and Skype. Notably, under Article icle 2(5)(Hs 2) EKEK, a service will not qualify as an electronic communication service where the communication function is merely ancillary.

Public Communications Networks

The electronic communication service must also be provided in a ‘public communications network’.

Neither the EPD nor the GDPR provide for a definition of a ‘public communications network.’ The EKEK outlilnes that an electronic communications network is public, where is is “wholly or mainly used to provide publicly accessible electronic communication services that enable the transmission of information between network termination points.” A public communications network would not therefore cover a closed company communications network, whereby employees only interact with each other. In such a situation, Article 95 will not be relevant, and the GDPR applies as normal.

Notably, Recital 173 GDPR, which relates to Article 95 GDPR, omits reference to ‘publicly accessible electronic communication services in public communication networks’, stating only that the GDPR should apply to matters which are not subject to specific obligations with the same objective under the EPD.

Article 95’s explicit reference to ‘publicly accessible electronic communication services in public communication networks’ in this context can be seen to “cause problems of interpretation” Namely, the question arises as to what data protection obligations will arise which do not involve the provision of publicly accessible electronic services in public communications networks. A key example is Article 5(3) of the EPD, which regulates the placement of cookies and other similar tracking technologies. Rather than applying only to publicly accessible electronic communications services, Article 5(3) applies to any entity that places cookies or other code on a users’ device. Services may therefore be subject to additional obligations under the GDPR in this instance.

Specific Obligations with the Same Objectives

In order not to be subject to additional obligations under the GDPR, processing must be related to matters for which they are subject to specific obligations with the same objective set out in Directive 2002/58/EC.

For example, Article 4(1a) of the EPD requires service providers to put in place measures to ensure the protection of personal data, and Article 4(3) GDPR requires service providers to notify the relevant authority wheree a data breach occurs. Since these objectives are mirrored in the GDPR, in line with Article 95 GDPR, the GDPR will not impose additional obligations on service providers. [Olive, p. 1298]

In contrast, where the EPD does not contain comparative provisions, additional obligations under the GDPR will apply. For example, the DPD contains no provisions with regard to data subject rights (Chapter III GDPR), nor consent (Article 7 GDPR).

The e-Privacy Regulation Proposal

Under Recital 173, once the GDPR is adopted, the EPD should be reviewed in order to ensure consistency with the GDPR. The Commission adopted a proposal for the e-Privacy Regulation on 19 January 2017.

Decisions

→ You can find all related decisions in Category:Article 95 GDPR