European Court of Justice declares Data Retention Directive invalid

By Rebecca Andersen

The Data Retention Directive requires public electronic communications providers to retain certain communications data (essentially traffic data) to help in the fight against serious crime. It applies to telcos and internet service providers (ISPs) and came into force in 2006 after a number of terrorist attacks in mainland Europe added impetus to efforts to harmonise EU member state laws. However, in a recent ruling, the European Court of Justice (ECJ) has concluded that the directive ‘interferes in a particularly serious manner with the fundamental rights to respect for private life and to the protection of personal data’ and declared it invalid.

How has this come about? This is not the first time that the directive has come under scrutiny. The European Commission looked at the directive in 2011 and had a number of criticisms (particularly as to the balance between the privacy of individuals and security).

In this latest development, the ECJ was asked to consider whether the directive complied with the EU Charter of Fundamental Rights, which sets out individuals’ rights to a private life and the protection of personal data. The request came from the Irish and Austrian national courts, which have before them a number of actions disputing the validity of corresponding national measures (as the directive was implemented in EU member states through national laws)…

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