Information, Unfair Terms, and Fundamental Rights Conflicts

Two important issues in electronic communications are the protection of privacy, and the prevention of unfair contractual terms.[1] By the nature of the service provided, telecommunication operators have access to personal information on their clients. Furthermore, telecommunication services are typically provided ‘remotely’, that is with little or no direct contact between client and provider. Considering that these services are rapidly changing owing to technological progress and thus difficult for the consumer to evaluate, it is easy to understand why in this area consumers are particularly exposed to unfair contractual terms.[2] How is the EU managing these challenges?

This section will highlight a recent trend in EU law, reflecting a new protective approach, which is also increasingly founded on fundamental rights. The first subsection will explore consumer empowerment via information, for which relevant provisions in Directive 2009/136/EC will be analyzed. The next subsection will then move on to discussing protection from unfair contractual terms, assessing an important ECJ ruling which clarified the role of national courts in consumer protection. The following subsection will then deal with the protection of personal data in electronic communication services, which is recognized as a fundamental right. However, recent case law has shown that this fundamental right may conflict with other fundamental rights, generating the need to strike a delicate balance. This is the topic of subsections 3.4 and 3.5, which comment on recent ECJ rulings on this issue in the light of the Charter.

  • [1] See the research of behaviour economics in the OECD Report from the Directorate forScience, Technology and Industry Committee for Information, Computer and CommunicationsPolicy, Enhancing Competition in Telecommunications: Protecting and Empowering Consumers,Ministerial Background Report (Paris: OECD, 2008), p. 9.
  • [2] For example, collective consumer actions have proliferated in this sector:.
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