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Digital Rights

ECJ asked to rule on mandatory retention of phone and internet data

The High Court has asked the European Court of Justice to rule on how much communications data the State can retain.

THE HIGH COURT has asked the European Court of Justice to rule on the extent to which Ireland can require telecommunications providers to retain data about how people use its services.

The court has made a preliminary reference to the ECJ asking whether an EU directive – which requires member states to retain details of mobile phone calls, internet and email usage – respects the rights of the user.

Justice Liam McKechnie has also asked the ECJ to offer guidance on whether national legislation implementing an EU directive must also comply with the European Convention on Human Rights if it is to be fully compatible with EU law.

The second matter could have a significant impact throughout the EU – and require member states throughout the 27-member bloc to revise laws implementing EU directives in case they may form a breach of a person’s human rights.

Laws which form a breach of the European Convention on Human Rights can be appealed to the European Court of Human Rights, a non-EU institution – and potentially result in countries being ordered to change their laws, as was the case in A, B and C versus Ireland on abortion rights.

Data retention

The High Court’s referrals to the ECJ stem from a case brought by Digital Rights Ireland against the Minister for Communications and others, querying the circumstances under which the State can ask telecommunications companies to retain information about how customers use their services.

The Communications (Retention of Data) Act 2011, which gives effect to an EU directive from 2006, requires telecoms companies and internet providers to retain information about the usage of a person’s phone and data connection for some time after it occurs.

Logs of phone and mobile phone traffic data must be retained for two years, while logs of internet usage must be retained for one year. The Act does not require the companies to retain the actual data itself, merely logs of the traffic.

Digital Rights Ireland argues that the legislation restricts individual privacy.

The Irish government had previously challenged the directive with the ECJ, asking it to be annulled on the basis that it had not been appropriately adopted. Ireland and Slovakia had voted against the adoption of the directive at the European Council in 2006.

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