The referral of Ireland's data retention law to Europe is part of an international trend, writes CAROL COULTER, Legal Affairs Editor
WHEN DIGITAL Rights Ireland first sought in 2008 to refer the law on data retention to Europe, it seemed to be a voice crying in the wilderness. However, since then its concerns have been echoed by the constitutional courts of three EU member states, and a decision in pending in a fourth.
The law derives from a 2006 EU Directive on the retention of data generated electronically. The Irish law on the subject, the Criminal Justice (Terrorist Offences) Act 2005, predates the directive, but a new Data Retention Bill, based on the directive, is before the Oireachtas. They are all aimed at the collection of data on communications traffic (though not content), such as e-mails and mobile phone calls, to assist in fighting crime and terrorism.
In March this year the German constitutional court overturned its law allowing authorities to retain data on telephone calls and e-mail traffic for help in tracking criminal networks. The law had provided for this data to be retained for six months, and the court ruled it violated German citizens’ right to private correspondence. It said the law failed to balance the right to personal privacy with the need to provide security, and failed to limit sufficiently the possible uses of the data.
In November last year the Romanian constitutional court ruled that national data retention laws were unconstitutional and in breach of the European Convention on Human Rights. Bulgaria did likewise, and a decision is awaited from the Hungarian constitutional court.
It is no coincidence that the countries whose populations are particularly sensitive on this topic are those with a strong and recent history of intrusive state surveillance. This will undoubtedly provide a backdrop to the case when it arrives in the European Court of Justice.
None of this was apparent when the case taken by Digital Rights Ireland first began. Three issues were put to the High Court: that the group had locus standi; whether it would have to face paying the costs of the action if it lost; and whether the legislative provisions should be referred to the European Court of Justice. The court found in DRI’s favour on all three issues.
The Human Rights Commission acted as amicus curiae in the case, arguing that this was a case of fundamental public importance.
The issue of locus standi, along with the issue of whether DRI had to provide security for costs, will be of interest to many groups. Documents presented to the court showed that DRI, which is a limited company, had only eight subscribers, had a gross income of €1,606 in 2006, and was running at a deficit of €4,815.
The court granted it locus standi, finding that such a group was “a sincere and serious litigant”; the case raised important constitutional questions; the impugned provisions affected almost all the population; the public good was being sought to be protected; and this was an effective way of bringing the action.
It also ruled against granting security of costs to the State, on the basis that this would deny the applicant effective redress, and that there were “special circumstances”, in that the matters raised were of significant public importance.
This ruling will give cheer to NGOs who seek redress through the courts for people unable to do so themselves, or on behalf of the public good. Often, challenging the State is seen as too big a risk because of the “chilling effect” of a possible adverse costs ruling.