The Right to Communications Confidentiality in Europe: Protecting Trust, Privacy, and Freedom of Expression

28 Pages Posted: 3 Apr 2018 Last revised: 2 Sep 2018

Frederik Zuiderveen Borgesius

University of Amsterdam - IViR Institute for Information Law (IViR)

Wilfred Steenbruggen

Bird & Bird

Date Written: August 31, 2018

Abstract

In the European Union, the General Data Protection Regulation (GDPR) provides comprehensive rules for the processing of personal data. In addition, the EU lawmaker intends to adopt specific rules to protect confidentiality of communications, in a separate ePrivacy Regulation. Some have argued that there is no need for such additional rules for communications confidentiality.

This paper discusses the protection of the right to confidentiality of communications in Europe. We look at the right’s origins as a fundamental right to assess the rationale for protecting the right. We also analyse how the right is currently protected under the European Convention on Human Rights and under EU law.

We show that the right to communications confidentiality protects three values: trust in communication services, privacy, and freedom of expression. The right aims to ensure that individuals and businesses can safely entrust communication to service providers. Initially, the right protected only postal letters, but it has gradually developed into a strong safeguard for the protection of confidentiality of communications, regardless of the technology used.

Hence, the right does not merely serve individual privacy interests, but also other interests that are crucial for the functioning of our information society. We conclude that separate EU rules to protect communications confidentiality, next to the GDPR, are justified and necessary to protect trust, privacy and freedom and expression.

Keywords: confidentiality, communications, email, ePrivacy, GDPR, letters, telecommunications, European Court of Human Rights, Charter of Fundamental Rights of the European Union

JEL Classification: K12, K00, D10, D11, D20, D30, D40, D60, D70, L00, L11, L20, L51

Suggested Citation

Zuiderveen Borgesius, Frederik and Steenbruggen, Wilfred, The Right to Communications Confidentiality in Europe: Protecting Trust, Privacy, and Freedom of Expression (August 31, 2018). Available at SSRN: https://ssrn.com/abstract=3152014 or http://dx.doi.org/10.2139/ssrn.3152014

Frederik Zuiderveen Borgesius (Contact Author)

University of Amsterdam - IViR Institute for Information Law (IViR) ( email )

Amsterdam
Netherlands

HOME PAGE: http://www.ivir.nl/employee/zuiderveen-borgesius/

Wilfred Steenbruggen

Bird & Bird ( email )

Zuid-Hollandplein 22
The Hague, 2596 AW
Netherlands

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