EU Body Issues Opinion on E-Mail Filtering

Recently, on February 21, the European Union's Working Party on the Protection of Individuals with Regard to the Processing of Personal Data (Working Party) adopted an Opinion on privacy issues related to the provision of e-mail screening services. The Working Party considered whether the filtering tools used by ISPs and ESPs (Internet and e-mail service providers, respectively) are in compliance with existing data protection legislation. The confidentiality of communications in the EU is guaranteed by international instruments relating to human rights (the European Convention for the Protection of Human Rights and Fundamental Freedoms), the constitutions of Member States, and two EU directives ("e-Privacy Directive" and "Data Protection Directive"). The Working Party considered whether the ISP and ESP practice of scanning e-mail communications for the purposes of virus detection, spam filtering and the detection of predetermined content is compatible with EU law. Because the delivery of e-mails containing viruses may shut down e-mail service providers' systems and impair the transmission of further e-mail communications, the Working Party found that virus filtering helps to safeguard the security of e-mail services and may be required for the service providers to perform their contracts with the users. Further, the Working Group concluded that "threats to the general performance of e-mail and network services can justify ISPs and ESPs to engage in filtering for anti-spam purposes." However, screening e-mails for predetermined content could not be considered as a necessary measure to safeguard the security of e-mail services. It was the Working Group's opinion that e-mail providers are "prohibited from engaging in filtering, storage or any other kinds of interception of communications and the related traffic data for the purposes of detecting any predetermined content without the consent of the users of the services." The full 10-page text of the Opinion can be found at: http://makeashorterlink.com/?S15916BCC Summary by: Clare McCurley