Invalid Data Retention Directive creates uncertainty

On 8 April 2014, the European Court of Justice (ECJ) in the Digital Rights Ireland case declared the Data Retention Directive 2006/24/EC invalid, creating uncertainty for providers of public communications networks and publicly available electronic communications services, as well as reviving the age-old debate in respect of individuals’ rights to privacy versus national security. 

The directive was passed in 2006 amid growing concerns in respect of counter-terrorism and crime prevention. It amended EU Directive 2002/58/EC (on privacy and electronic communications) and aimed to harmonise national measures across the EU relating to the retention of communications data. The directive requires communications providers to retain certain data in relation to users’ communications in order to detect, investigate and prosecute serious crime. Such data includes ‘personal data’ such as traffic and location data (such as phone numbers dialled, email addresses sent to and the location of the device from which the communication was sent, depending on the communications technology used) but not the content of the communications themselves. 

The implementation of the directive proved controversial in a number of member states not least because it failed to set clear criteria on how member states were to apply a number of its provisions and safeguard individual rights. The Irish and Austrian courts proceeded to refer questions to the ECJ in respect of whether the directive was compatible with the fundamental rights guaranteed to citizens by the Charter of Fundamental Rights of the EU…

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