Electronic Communication, Fundamental Rights Conflicts, and Consumer Participation
Services of general interest usually comprise telecommunication services, postal services, and the supply of utilities, such as electricity, water, and gas. Of these, telecommunication services have been expanding most quickly in recent decades, becoming increasingly important in the daily lives of consumers, as they constitute an essential means for individuals to participate fully in society. This chapter deals with consumer access to such basic services as telephone and the Internet, and examines the fundamental right to data protection and the freedom to receive or impart information.
Like other services of general interest, telecommunications were traditionally part of a state monopoly. From the 1980s onwards, an increasing trend towards privatization has spread across the whole of Europe, with the welfare state retreating to a minor role and leaving more room for private companies in a move which, coupled with deregulation, was supposed to improve efficiency and therefore consumer welfare.
However, following privatization, new challenges for consumers have appeared. This is manifested by an increase in consumer actions due to, for example, mobile phone overcharging and mis-selling, unfair contract terms, and misleading advertising in electronic communication. At the same time, the development of new forms of communication has opened the door to ‘scams’ and risks of identity theft, posing threats to consumer privacy and requiring additional protective measures.
As will be seen, fundamental rights play a growing role in the area of electronic communication. In a fast-changing information society, communications services, and in particular, access to the Internet, have become essential for consumers to connect with the community and to access information and key educational resources. Hence, the right of access to such services has been increasingly seen as ‘fundamental’—both in itself, and because it is a precondition for the exercise of other recognized fundamental rights.
However, a number of cases recently brought to the ECJ saw these new fundamental rights clashing with established, equally important, fundamental rights. For example, some cases related to the use of the Internet show a conflict between the right to protection of personal data and the freedom to receive or impart information, on the one hand, and the right to intellectual property, on the other.
What is the role of the Charter of Fundamental Rights in this evolution? To answer this question, it is useful to describe the evolution that led to the current situation. Historically, electronic communications law has taken a competition-centred approach. However, given the growing links with fundamental rights described above, it appears crucial to consider it now in a broader consumer-citizens perspective. To do this, one has to explicitly consider issues such as social inclusion, which for example may require that services have to be provided to isolated regions, or to the disabled and the elderly. Steps in this direction have been taken in Europe in the first decade of the 2000s. For instance, the Citizens’ Rights Directive 2009/136/EC aims to ensure universal access to these services, paying special attention to disabled or socially disfavoured consumers. Moreover, this directive encourages consultations of consumer groups, promoting their regulatory involvement. Besides these changes, the Charter contains a number of rights that are relevant in the field of electronic communications, such as the rights to privacy and data protection. These developments suggest that a fundamental rights and broader consumer perspective is gaining momentum, and may improve market participation and regulatory involvement.
Set against this background, this chapter is organized in three sections. The first outlines the European legal framework for electronic communications and universal services. The second section describes relevant consumer rights and examines how the ECJ has tried to balance conflicting fundamental rights. The third and final section analyzes new measures that might increase regulatory involvement of consumers, such as the European Citizens’ Initiative and regulatory consultation mechanisms.
-  T. Wilhelmsson, S. Tuominen, & H. Tuomola (eds), Consumer Law in the Information Society(The Hague-London-Boston: Aspen Publishers-Kluwer-Law and Business, 2000).
-  J. KeBsler & H.-W. Micklitz (eds), Kundenschutz aufliberalisierten —Vergleich der Konzepte, Mafinahmen und Wirkungen in Euro-pa (Baden-Baden: Nomos, 2008), p. 7.
-  I. Ramsey (2003), ‘Consumer Redress and Access to Justice’, in C.E.F. Rickett & T.G.W. Telfer(eds), International Perspectives on Consumers’ Access to Justice (Cambridge: CUP, 2003), pp. 17-45.
-  Kessler & Micklitz (eds), Kundenschutz auf liberalisierten Mdrkten (n 2), p. 7.
-  Directive 2009/136/EC, OJ L 337/11, 18.12.2009.