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17.7.2000 I EN | Official Journal of the European Communities L 178/3

should be without prejudice to Directive 98/43/EC of the European Parliament and of the Council of 6 July 1998 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products (') adopted within the framework of the internal market, or to directives on the protection of public health; this Directive complements information requirements estab-lished by the abovementioned Directives and in particular Directive 97/7/EC.

(12) It is necessary to exclude certain activities from the scope of this Directive, on the grounds that the freedom to provide services in these fields cannot, at this stage, be guaranteed under the Treaty or existing secondary legislation; excluding these activities does not preclude any instruments which might prove necessary for the proper functioning of the internal market; taxation, particularly value added tax imposed on a large number of the services covered by this Directive, must be excluded form the scope of this Directive.

(13) This Directive does not aim to establish rules on fiscal obligations nor does it pre-empt the drawing up of Community instruments concerning fiscal aspects of electronic commerce.

(16) The exclusion of gambling activities from the scope of application of this Directive covers only games of chance, lotteries and betting transactions, which involve wagering a stake with monetary value; this does not cover pro-motional competitions or games where the purpose is to encourage the sale of goods or services and where payments, if they arise, serve only to acquire the promoted goods or services.

(17) The definition of information society services already exists in Community law in Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedurę for the provision of information in the field of technical standards and regulations and of rules on information society services(⁴) and in Directive 98/84/EC of the European Parliament and of the Council of 20 November 1998 on the legał protection of services based on, or consisting of, conditional access(⁵); this definition covers any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing (induding digital com-pression) and storage of data, and at the individual request of a recipient of a service; those senices referred to in the indicative list in Annex V to Directive 98/34/EC which do not imply data processing and storage are not covered by this definition.

(14) The protection of individuals with regard to the Processing of personal data is solely governed by Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the tree movement of such data(²) and 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(³) which are fully applicable to information society services; these Directives already establish a Community legał 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 (unctioning of the internal market, in particular the free movement of personal data between Member States; the implementation and application of this Directive should be madę in fuli compliance with the principles relating to the protection of personal data, in particular as regards unsolicited commercial communi-cation 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/EC; 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.

(18) Information society services span a wide rangę of econ-omic activities which take place on-line; these activities can, in particular, consist of selling goods on-line; activi-ties such as the delivery of goods as such or the provision of services off-line are not covered; information society services are not solely restricted to services giving rise to on-line contracting but also, in so far as they represent an economic activity, extend to services which are not remunerated by those who receive them, such as those offering on-line information or commercial Communications, or those providing tools allowing for search, access and retrieval of data; information society services also include services consisting of the transmission of information via a communication network, in providing access to a communication network or in hosting information provided by a recipient of the service; television broadcasting within the meaning of Directive EEC/89/552 and radio broadcasting are not information society services because they are not provided at individ-ual request; by contrast, services which are transmitted point to point, such as video-on-demand or the provision of commercial Communications by electronic mail are information society services; the use of electronic mail or equivalent individual Communications for instance by natural persons acting outside their trade, business or profession including their use for the conclusion of contracts between such persons is not an information society service; the contractual relationship between an

(') OJ L 213, 30.7.1998, p. 9.

(²) OJ L 281, 23.11.1995, p. 31.

(³) OJ L 24, 30.1.1998, p. 1.

(⁴) OJ L 204, 21.7.1998, p. 37. Directive as amended by Directive 98/48/EC (OJ L 217, 5.8.1998, p. 18).

(5) OJ L 320, 28.11.1998, p. 54.