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processing operations concerning public security, defence, State security (including the
economic well-being of the State when the processing operation relates to State security
matters) and the activities of the State in areas of criminal law,
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by a natural person in the course of a purely personal or household act.’
Article 22 of Directive 95/46, which is in Chapter III of that directive, headed ‘Judicial remedies,
liability and sanctions’, was worded as follows:
‘Without prejudice to any administrative remedy for which provision may be made, inter alia
before the supervisory authority referred to in Article 28, prior to referral to the judicial authority,
Member States shall provide for the right of every person to a judicial remedy for any breach of the
rights guaranteed him by the national law applicable to the processing in question.’
Directive 97/66
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Under Article 5 of Directive 97/66/EC of the European Parliament and of the Council of
15 December 1997 concerning the processing of personal data and the protection of privacy in the
telecommunications sector (OJ 1998 L 24, p. 1), headed ‘Confidentiality of the communications’:
‘1.
Member States shall ensure via national regulations the confidentiality of communications by
means of a public telecommunications network and publicly available telecommunications services.
In particular, they shall prohibit listening, tapping, storage or other kinds of interception or
surveillance of communications, by others than users, without the consent of the users concerned,
except when legally authorised, in accordance with Article 14(1).
2.
Paragraph 1 shall not affect any legally authorised recording of communications in the course
of lawful business practice for the purpose of providing evidence of a commercial transaction or of
any other business communication.’
Directive 2000/31
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Recitals 14 and 15 of Directive 2000/31 provide:
‘(14)
The protection of individuals with regard to the processing of personal data is solely
governed by Directive [95/46] and Directive [97/66] which are fully applicable to information
society services; these Directives already establish a Community legal framework in the field
of personal data and therefore it is not necessary to cover this issue in this Directive in order
to ensure the smooth functioning of the internal market, in particular the free movement of
personal data between Member States; the implementation and application of this Directive
should be made in full compliance with the principles relating to the protection of personal
data, in particular as regards unsolicited commercial communication and the liability of
intermediaries; this Directive cannot prevent the anonymous use of open networks such as the
Internet.
(15)
The confidentiality of communications is guaranteed by Article 5 Directive [97/66]; in
accordance with that Directive, Member States must prohibit any kind of interception or
surveillance of such communications by others than the senders and receivers, except when
legally authorised.’
Article 1 of Directive 2000/31 is worded as follows:
‘1.
This Directive seeks to contribute to the proper functioning of the internal market by ensuring
the free movement of information society services between the Member States.
2.
This Directive approximates, to the extent necessary for the achievement of the objective set
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