Out-Law News 1 min. read

EU court hears case on UK data retention laws

The EU's highest court will hear arguments on Tuesday concerning the validity of UK data retention laws.

The Data Retention and Investigatory Powers Act (DRIPA) came into force in July 2014 and broadly requires telecoms providers to retain information about customers' communications and to disclose that information to law enforcement agencies when asked to do so.

DRIPA was introduced as a replacement for UK rules that previously implemented the EU's Data Retention Directive which was invalidated by the Court of Justice of the EU (CJEU) in 2014. However, a legal challenge against DRIPA, fronted by two UK MPs, was launched shortly after the new legislation came into force. Conservative MP David Davis and Labour MP Tom Watson, backed by human rights campaign group Liberty, raised concern that the faults with the Data Retention Directive had been repeated in DRIPA and questioned whether the Act respected people's privacy rights.

In July last year the High Court in London ruled that DRIPA was incompatible with human rights legislation but that decision was appealed by the UK government to the Court of Appeal.

The Court of Appeal has asked the CJEU to rule on whether its previous judgment on the Data Retention Directive sets out "mandatory requirements of EU law applicable to a member state's domestic regime governing access to data retained in accordance with national legislation, in order to comply with Articles 7 and 8 of the EU Charter".

Under Articles 7 and 8 of the EU Charter of Fundamental Rights everyone has a qualified right to privacy and the protection of their personal data.

The CJEU has also been asked whether its judgment in invalidating the Data Retention Directive "expand[s] the scope of Articles 7 and/or 8 of the EU Charter beyond that of Article 8 of the European Convention of Human Rights (ECHR)".

Article 8 of the ECHR provides a qualified right to privacy. It states that public authorities should not interfere with that right "except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others".

It can take months after a hearing at the CJEU for the court to issue its judgment on the questions before it. However, the case is being dealt with under the CJEU's expedited procedure.

DRIPA was introduced as stop-gap legislation and expires at the end of 2016 owing to a sunset clause. The UK government has subsequently published a proposed new Investigatory Powers Bill which contains a number of major reforms to existing UK surveillance laws and is to replace DRIPA.

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