D11.2: Mobility and LBS

Title: FREQUENCY OF LOCALISATION AND RESPECTIVE CONSENT

Frequency of localisation and respective consent

Additional questions arise regarding the frequency of the localisation and subsequently the time validity of the consent. The user or the subscriber gives his consent either for one specific operation or in order to be located on an ongoing basis. In the former case of instant positioning of the user, the localisation is initiated on the order given by the user. This order can for instance be given by dialling a specific number in order to get information related to the region where the user is located (such as weather forecast or the location of his nearest pharmacy or gas station). For the provision of this service the location data of the user are needed and the dialling of the specific number by the user is rendered as consent to being localised.

More difficulties appear when the continuous or periodical localisation of the user is needed for the provision of the Location Based Services, in order to offer navigation services for instance. Although it is not clear from the directive whether the consent given for all services of the same category is enough or the consent of the user shall be asked before the initiation of every individual request, it seems sufficient to consent once for a category of requests. How cumbersome and even irritating the latter option could become for the user, can be shown if we think of the ‘find a friend’ example. The provision of this service requires the constant localisation of all ‘friends’. However it is most unlikely that users would like to be localised at any moment of their everyday life or to give their consent every time a request from a friend for their localisation is automatically launched or every time they switch on the tracking service. The possibility of switching on and off the service is foreseen in Art. 9(2) ePrivacy dir., according to which “where consent of the users or subscribers has been obtained […], the user or subscriber must continue to have the possibility, using a simple means and free of charge, of temporarily refusing the processing of such data for each connection to the network or for each transmission of a communication”. Article 29 Working Party has expressed the opinion that the service providers should ‘regularly remind the user that his or her terminal equipment has been, will be or can be located’. Still one basic question remains and is not very easy to be answered: how can it be ensured that the one that gave his consent to being localised is in fact the person using the mobile phone, the person whose location data are processed.