Certified Information Privacy Professional/Europe CIPP-E Exam Questions

 The ePrivacy Directive is a European Union (EU) directive that aims to protect the confidentiality of electronic communications and prevent their indiscriminate interception or monitoring. It was adopted in 2002 and amended in 2009.  It applies to all providers of electronic communication services, such as internet service providers, mobile network operators, and online platforms 1 2 .

One of the main objectives of the ePrivacy Directive is to ensure that the retention of communications traffic data for law enforcement purposes is subject to strict conditions and safeguards.  Communications traffic data refers to any information relating to the transmission or routing of electronic communications, such as IP addresses, timestamps, and metadata 3 .  Such data can be used by competent national authorities for the prevention, investigation, detection or prosecution of criminal offences and safeguarding national security 4 .

However, the ePrivacy Directive does not allow individual EU member states to engage in such data retention without harmonizing their rules. Article 6(1)(b) of the directive states that “Member States shall ensure that any measures taken by them in relation to the retention of traffic data are consistent with this Directive”.  Therefore, each EU member state must adopt a national law that complies with the requirements and limitations set by the directive 1 2 .

The Data Retention Directive (DRD) was a previous EU directive that aimed to establish a common framework for the retention of communications traffic data for law enforcement purposes across all EU member states. It was adopted in 2006 and amended in 2010. However, it was annulled by the Court of Justice of the European Union (CJEU) in 2014 on procedural grounds.  The CJEU found that some provisions of the DRD were inconsistent with other EU directives and principles, such as Article 8(2) of the Charter of Fundamental Rights (CFR), which protects individuals from arbitrary interference with their privacy 5 6 .

The GDPR is a new EU regulation that implements some aspects of the DRD into national law through its provisions on processing personal data. However, it does not address directly the issue of communications traffic data retention for law enforcement purposes. Instead, it requires providers to implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk involved in processing personal data.  These measures include encryption, pseudonymisation, access control, and accountability 7  .  The GDPR also grants individuals certain rights regarding their personal data, such as access, rectification, erasure, portability, and objection 7  .

Therefore, under current EU law, there is no single legal basis for retaining communications traffic data for law enforcement purposes across all EU member states. Each member state must adopt its own national law that respects the principles and limitations established by the ePrivacy Directive.

Under the GDPR, the lead supervisory authority is determined by where the main establishment related to the processing activity is located.

In this case, even though the company's headquarters is in Germany, the SaaS application was specifically defined and implemented by the Polish establishment. This indicates that the Polish establishment has the primary role in determining the purposes and means of processing personal data related to that SaaS service. Therefore, the supervisory authority of Poland would be the lead supervisory authority for this specific processing activity.

According to the E-Commerce Directive 2000/31/EC, the place of establishment for a company providing services via an Internet website is the place where the service provider effectively pursues an economic activity through a fixed establishment for an indefinite period of time. The presence and use of the technical means and technologies required to provide the service do not, in themselves, constitute an establishment of the provider. The place of establishment is determined by the place where the decisions about processing are made, not by the place where the technology supporting the website is located, where the website is accessed, or where the customer’s Internet service provider is located. This is confirmed by the GDPR, which applies to the processing of personal data in the context of the activities of an establishment of a controller or a processor in the EU, regardless of whether the processing takes place in the EU or not.  References:

E-Commerce Directive 2000/31/EC, Article 2(a), Recital 19 1

GDPR, Article 3(1) 2