La sedicente transposición de la Ley 11/2022, de 28 de junio, General de Telecomunicaciones en materia de privacidad electrónica

Abstract

Although the transposition of the European Electronic Communications Code has been late (an infringement procedure had been opened before the Court in Luxembourg), the new General Telecommunications Law precedes the ePrivacy Regulation, which will replace Directive 2002/58/EC with regard to the protection of personal data in electronic communications sector, a matter that has a wider scope than the European Electronic Communications Code. Bearing in mind that, just as the GDPR requires the LOPDGDD, the future ePrivacy Regulation, under negotiation since 2017 as one of the complementary pillars of the GDPR, will also continue to require its implementation both by the General Telecommunications Law and Law on Information Society Services, based on the dichotomy between electronic communications services and information society services. This anticipation could partially excuse the deficient approach of the new General Telecommunications Law to personal data protection, despite having incorporated the suggestions by the Spanish Data Protection Agency. Since, on the one hand, the privacy rules do not apply to the full extent to NI-ICS/OTT, despite the fact that the Directive 2002/58/EC currently covers all electronic communications services by reference to the current European Electronic Communications Code. And, on the other hand, the reform implements without European consensus the explicit consent required by the GDPR in this area of e-privacy, despite the fact that the GDPR should not impose "a priori" additional obligations on this specific regime, beyond a disagreement of the EDPB in this regard.