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CJEU in Tele2 rules broad data retention laws invalid, raises questions for data transfer mechanisms, post-Brexit UK

Let there be no doubt: EU law unequivocally precludes the “general and indiscriminate retention of traffic data and location data.”

This is clear following today’s judgment of the Court of Justice of the European Union in Tele2, which affirms that Court’s previous judgment in Digital Rights Ireland, from 2014. In that judgment the CJEU held that the EU’s Data Retention Directive was invalid. Some EU member states, such as Sweden and the U.K., then continued to oblige telecommunications providers to generally retain data under their national laws. Today the EU held that such national laws must similarly comply with EU data protection rules and may thus be similarly invalid.

Yes, the U.K.'s DRIPA, aka the Snooper’s Charter, very likely “overstepped the mark,” though it was not technically in place when this Tele2 case began. France's new surveillance law may be similarly affected. But every EU member state will have to rethink its surveillance laws in light of this judgement. 

The CJEU made clear that the data retention laws of member states must comply with EU data protection rules.

Tele2 is of great significance for a number of reasons. Firstly, the CJEU made clear that the data retention laws of member states must comply with EU data protection rules. Some member states thought that the derogations provided by EU Directive 2002/58 allowed them to introduce national laws outside the scope of EU data protection law in general and the judgment of the CJEU in Digital Rights Ireland in particular. The CJEU clearly does not share that view. This will have significance for national laws that EU member states may introduce in accordance with derogations provided by the EU General Data Protection Regulation and other EU legal acts.

Secondly, the CJEU reiterated its judgment, in Digital Rights Ireland and Schrems, that generalised and indiscriminate surveillance is not permissible under EU law. Every phone call, text or internet connection that is made generates data about the location, time and duration of that communication. As the CJEU held, this “retained data, taken as a whole, is liable to allow very precise conclusions to be drawn concerning the private lives of the persons whose data has been retained.” The CJEU accepted that it may be necessary to retain data in some circumstances, such as in respect of “a public whose data is likely to reveal a link, at least an indirect one, with serious criminal offenses, and to contribute in one way or another to fighting serious crime or to preventing a serious risk to public security.” This might be done on the basis of geography, such as a city center, where there exists a high risk of preparation for or commission of such offences.

Thirdly, the CJEU outlined what a national data retention law needs to contain in order to comply with EU data protection law. Such a law must lay down clear and precise rules and impose minimum safeguards; it must indicate the circumstances and conditions under which data retention may be adopted as a preventative measure. This is to limit such retention to what the ECJ underlines as “strictly necessary.” Where data is retained, such retention must “meet objective criteria, that establish a connection between the data to be retained and the objective pursued.” These objective criteria must be assessed against objective evidence. While the CJEU does allow that member states may require that data may be retained, such requirements will not be easily or lightly imposed. 

Fourthly, the CJEU stated unequivocally that “the data concerned should be retained within the European Union.”

Where data is retained, then it must be kept securely and destroyed once its retention is no longer necessary. Further, access to that data must be controlled; national data retention laws must set out “the substantive and procedural conditions governing … access.” This might generally limit police or other authorities to accessing the data of “individuals suspected of planning, committing or having committed a serious crime or of being implicated in one way or another in such a crime.” Such access would have to be “subject to a prior review carried out either by a court or by an independent administrative body.” Anyone whose data is accessed will have to be notified, though not until prejudice would no longer result to the investigation in question.

Fourthly, the CJEU stated unequivocally that “the data concerned should be retained within the European Union,” and it is notable that the reference is to the EU, not the European Economic Area, which has a broader membership. This is a statement that clearly has significant implications for the transfer of personal data outside the EU. At present, such transfers are enabled by mechanisms such as the EU-U.S. Privacy Shield, the Umbrella Agreement, and the model contractual clauses. Shield and model clauses are both before national courts and the CJEU itself. It will be interesting to see how Tele2 will impact upon these various reviews. The CJEU will have an opportunity to expand upon Tele2 when it gives judgment shortly in Avis 1/15, which concerns the transfer of Passenger Name Data to Canada. Judgment in both Avis 1/15 and Tele2 may then impact upon the review of Privacy Shield, which is to be undertaken in 2017 by the Article 29 Working Party.

Finally, Tele2 may have an even greater significance than a simple summation of the above points would suggest. This is particularly so if Tele2 is read in conjunction with the CJEU’s recent judgment in Breyer, in which the CJEU took a very expansive view of the definition of personal data. Read together, Tele2 and Breyer suggest that EU data protection law is of even more general application than was thought when the GDPR was enacted. In this context it is interesting to note that the CJEU refers to communications data as being “sensitive,” even though such data is not defined as “sensitive” by the GDPR. This may suggest that the CJEU has a view of EU data protection rules that goes beyond what is provided in the text of EU legislation such as the GDPR.

This is no more than a suggestion at this time; it remains to be seen if this suggestion has real substance.

Photo credit: Image provided by the Court of Justice of the European Union.

Written By

Denis Kelleher, CIPP/E

1 Comment

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  • Martin Hoskins Dec 21, 2016

    I wonder of its relevant to note that the UK does not require the blanket retention of all communications data generated by all CSPs & ISPs - just the retention of all communications data generated by some CSPs & ISPs. The providers have to be in receipt of a notice from the Home Office before the retention provisions actually apply to them.

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