Get in Touch with NAME

  • This field is hidden when viewing the form

A CJEU’s ruling on Retention of Data

MEDIA ROOM

January 5, 2017

In a recent preliminary ruling, the Court of Justice of the European Union (CJEU) stated that a Member State’s legislation cannot oblige e-communication providers to retain data. The Ruling under examination is the Judgment in Joined Cases C-203/15 Tele2 Sverige AB v Post-ochtelestyrelsen and C-698/15 Secretary of State for the Home Department v Tom Watson and Others delivered on the 21st of December 2016.

This ruling was issued on the interpretation of UK and Swedish laws. The latter legislation provides for an obligation on telecommunications operators to engage in the bulk collection of metadata associated with different data communication transmissions.

The interpretation of Article 15(1) of the e-Privacy Directive, Directive 2002/58/EC of the European Parliament and of the Council, was read in light of the Charter of Fundamental Rights. The said article allows Member States to adopt measures that restrict the privacy rights granted to users of electronic communications services. According to this Directive, such applications may be applied when, and if necessary, appropriate and proportionate to safeguard national security.

The CJEU stated that the general and indiscriminate retention of all traffic and location data to fight crime is incompatible with EU Law. It went on to state that it is also contrary to EU Law to allow competent national authorities to access retained data where such access is not limited solely to fighting serious crime. Access from competent national authorities should only be subject to prior review by a court.

In the case of retention of traffic and location data to fight serious crime, this is allowable as long as the retention of such data is limited to what is strictly necessary in respect of:

  1. Categories of data to be retained;
  2. Means of communication affected;
  3. Persons concerned; and
  4. Retention period adopted.

The Court’s reasoning called into question the validity, under EU law, of the wide powers of surveillance and data retention permissible by virtue of the UK Investigatory Powers Act and other corresponding Member States’ legislation.