Out-Law News | 15 Sep 2006 | 4:50 pm | 1 min. read
The action will begin in the High Court but is likely to be heard in the European Court of Justice, said the chairman of DRI, barrister TJ McIntyre. The suit argues that the Irish law breaches that country's Constitution and that the EU Directive contravenes the European Convention on Human Rights.
"It's a challenge to both Irish law and the EU Directive," said McIntyre. "We're challenging the domestic law on national constitutional grounds and the EU Directive and we're hoping for a preliminary reference to Luxembourg to assess the validity of the Directive."
The Data Retention Directive was passed this year and requests that member states pass laws which mandate telecoms firms to retain data on customers' use for up to two years. Ireland's law on data retention was passed in 2005.
"The Irish Constitution has an unenumerated right to privacy which has been read into it by the courts," said McIntyre. "The Irish courts have been very strong on saying that any limitation on privacy must be reasonable, must be justified and clearly that's not the case with data retention."
DRI will ask the High Court in Ireland to refer the Directive to the ECJ for a decision on its validity. The action names as defendants the Minister for Communications, Marine and Natural Resources, the Attorney General, the Minister for Justice, Equality and Law Reform and the Garda [police] Commissioner.
DRI hopes that its action will have a knock on effect on data retention legislation across Europe. "If we're successful it will strike down the Data Retention Directive and that will invalidate a lot of the data retention laws across Europe," said McIntyre. "We're hoping that there will be a knock on effect. A ruling on the human rights case would be very persuasive for national courts."
Ironically, Ireland was one of two countries which opposed the Directive on procedural grounds. The Irish Government had wanted more stringent measures and was unhappy that the procedure used to pass the Directive meant that it had no veto in what it regarded as a security matter, as is usual.
McIntyre said that he agreed with the Government on the procedural basis of the Directive as well as objecting to it on the grounds of its content. He said that he will find himself on the same side as the government he is taking to court on those procedural grounds. McIntyre said that the action is being funded through donations.