High Court: Legislation providing for retention of communications data is inconsistent with EU law
Stating that “the chilling effect on privacy and the rights of free expression and association by actual, feared and mandatory surveillance cannot be underestimated”, Mr Justice Tony O’Connor has found that sections of the Communications (Retention of Data) Act 2011 are inconsistent with EU law.
Referring to George Orwell’s novel, 1984, in his obiter remarks, Mr Justice O’Connor warned that “organs of the State should tread carefully when trenching upon the dignity and privacy of the human person”.
In March 2015, Graham Dwyer was convicted by a jury of the murder of Ms Elaine O’Hara for which he received a life sentence.
The investigation leading to the trial used the mobile telephony data generated by the phone provided to Mr Dwyer by his employer (“the 407 phone”).
This data was retained and accessed under the Communications (Retention of Data) Act 2011.
Counsel for Mr Dwyer applied to the trial Judge to exclude the telephony data for the 407 phone, however it was ruled that the data could be adduced in evidence.
Submissions had been made concerning the operation of the Communications (Retention of Data) Act 2011 in view of:-
(i) Directive 2006/24/EC on the retention of data generated or processed in connection with the provision of publicly available electronic communication services or of public communications networks (amending Directive 2002/58/EC), (hereafter the 2006 Directive);
(ii) The 2014 judgment of the Court of Justice of the European Union in Digital Rights Ireland Limited v. Minister for Communications, Marine and Natural Resources & Ors and Kärntner Landesregierung and Others (Joined Cases C-293/12 and C-594/12) – which had declared the 2006 Directive to be invalid; and
(iii) Articles 7 (respect of private and family life), 8 (protection of personal data), 11 (freedom of expression and information), 41 (right to good administration), 52 (limitation of rights must be provided by law) of the Charter of Fundamental Rights of the European Union
In the High Court, Mr Justice O’Connor said that the Court would not concern itself with the ruling of the trial judge in Mr Dwyer’s case, or the admission of evidence – and that Mr Dwyer’s conviction and sentence remained.
Mr Justice O’Connor said that Mr Dwyer’s claim ultimately came down to alleging that:
(i) Section 3(1) of the Communications (Retention of Data) Act 2011 contravenes Article 15(1) of the 2002 Directive read in light of:
a. Articles 7, 8, 11 and 52(1) of the Charter of Fundamental Rights of the European Union, and
b. Articles 8 and 10 of the ECHR
in so far as it permits the retention of telephony data in a manner which is general and indiscriminate;
(ii) Section 6(1) and s. 7 of the Communications (Retention of Data) Act 2011 contravenes Article 15(1) of the 2002 Directive read in light of Articles 7, 8, 11 and 52(1) of the Charter in so far as it permits the accessing of the retained telephony data other than on foot of prior review by a court or an administrative authority;
(iii) Sections 3, 6 and 7 of the Communications (Retention of Data) Act 2011 are:
a. incompatible with the obligations of the State under Articles 8 and 10 of the ECHR
b. repugnant to Articles 40.3.1o, 40.3.2o and 40.6.1o of the Constitution for the same reasons given in respect of the challenge under the Charter.
Mr Justice O’Connor said that he would not make a declaration as to the alleged repugnancy of s.3 and s.6 of the Communications (Retention of Data) Act 2011 with the Constitution. In this regard, the judge said that the discussion of the invalid 2006 Directive together with the referred legislation from England and Sweden that were considered in Tele2 Sverige AB v. Post- och telestyrelsen and Secretary of State for the Home Department v. Tom Watson and Others (Joined Cases C-203/15 and C-698/15) did “not require this Court to determine the constitutionality of the impugned sections”.
Mr Justice O’Connor said that he proposed to make declarations about the inconsistency of ss. 3(1), 6(1) and 7 of the 2011 Act with EU law; and invited final submissions about the exact terms of a perfected order and the necessity for a declaration pursuant to s. 5 of the ECHR Act.
In this regard, he said “if such declarations are made, is there a necessity to make a declaration pursuant to s. 5 of the ECHR Act concerning the limited incompatibility of ss. 6(1) and 7 of the 2011 Act with the right to respect for private life under Article 8 of the ECHR?”, noting that “the effect of a declaration under s. 5 of the ECHR Act appears less than that available under EU law” and questioned whether there was “any practical purpose in making a declaration pursuant to s. 5 of the ECHR”.
In his lengthy judgment, Mr Justice O’Connor referred to George Orwell’s 1984 in his obiter remarks, in which he stated that “…organs of the State should tread carefully when trenching upon the dignity and privacy of the human person in the sphere of telephony data retention and access. Just as crime is required to be investigated, there should be transparency of use or abuse of power. Notification, supervision and enforceable sanctions are means to limit abuses. The chilling effect on privacy and the rights of free expression and association by actual, feared and mandatory surveillance cannot be underestimated”.
- by Seosamh Gráinséir for Irish Legal News
© Irish Legal News Ltd 2019