Electronic Communication Confidentiality in ePrivacy Regulation: How to Protect Privacy and Personal Autonomy Without Hampering AI Solutions Development

Abstract

This article aims to analyse Articles 5 and 6 of the draft ePrivacy Regulation put forward by the European Commission, as key rules regulating the processing of electronic communication data and metadata. The confidentiality of electronic communication is an important aspect of privacy and personal autonomy protection. Still, disproportionate regulation may hurt economic growth, particularly with regard to artificial intelligence (AI) solutions development. The article begins by briefly describing a socio-economic context in which the future regulation of electronic communication confidentiality will function, then analyses the implications of proposed norms for the protection of privacy and personal autonomy, and their potential implications for economic development, for AI solutions in particular. The article analyses which of the proposed versions of Articles 5 and 6 meet the middle ground and ensure protection of privacy and personal autonomy without at the same time hampering economic development and AI innovation. After analysing the proposed normative content of all three versions of the ePrivacy Regulation draft, some afterthoughts are shared about them and their potential impact. The goal is to find the proper balance between privacy protection as an ultimate priority and maintaining economic development and innovation as something that cannot be ignored and is a priority in its own right, to an extent where it does not harm the essential content of the fundamental right to privacy and personal autonomy.