Digital Rights Ireland ruling, 2014

The Digital Rights Ireland ruling, of the Grand Chamber of the Court of Justice of the European Union in Joined Cases C‑293/12 and C‑594/12, given in 2014, declared invalid the EU Data Retention Directive (Directive 2006/24/EC). This Directive had provided the legal basis for UK regulations requiring service providers to retain communications data for law enforcement purposes, for between six and 24 months. This ruling resulted in the passing of the Data Retention and Investigatory Powers Act 2014 (DRIPA) by the UK Parliament, which asserted the continuing legality of communications data retention.

The Court found that, as the provisions contained in the Data Retention Directive “applies to all means of electronic communication [and] covers all subscribers and registered users, [i]t therefore entails an interference with the fundamental rights of practically the entire European population.” [1] As such, the Directive “entails a wide-ranging and particularly serious interference with those fundamental rights in the legal order of the EU” [2], which the Court ruled invalid.

The Anderson Review suggests the consequences of the ruling could be significant, since the Grand Chamber’s rulings are strictly binding. Henceforth, UK legislation in this area will require consideration of, for example, “the substantive and procedural conditions for access to and use of retained data” and provision for the physical security of data and its irreversible destruction” [3]. Moreover, although this case covered only the retention of communications data, the legality of bulk interception of communications could also be affected.

The Digital Rights Ireland ruling was cited as the case law with which section 1 of DRIPA was ruled incompatible and thus disapplied, from 31 March 2016, in Davis and Others vs The Secretary of State for the Home Department.

 

[1] Grand Chamber of the Court of Justice of the European Union, Joined Cases C‑293/12 and C‑594/12, paragraph 56, accessible at http://curia.europa.eu/juris/document/document.jsf?text=&docid=150642&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=407973

[2] Ibid, paragraph 65.

[3] David Anderson QC, A Question of Trust, p.97.