AG Saugmandsgaard Øe on Mass Data Retention: No Clear Victory for Privacy Rights

Yesterday, Attorney General Henrik Saugmandsgaard Øe issued his opinion in the joined cases of Tele2 Sverige AB v Post-och telestyrelsen (C-203/15) and Secretary of State for the Home Office v Watson et al. (C-698/15). This judgement has been long awaited by anyone interested in privacy rights, and more generally the relationship between states and their citizens during this period of an extended “war on terror”.

The cases both emerged from the aftermath of the outcome of the CJEU decision in joined Cases C-293/12 and 594/12 Digital Rights Ireland Ltd and Seitlinger and others. That decision had ruled the EU Data Retention Directive 2006/24/EC to be incompatible with EU Law, in particular that it “exceeded the limits imposed by compliance with the principle of proportionality in the light of Articles 7, 8 and 52(1) of the Charter” at [69]. Tele2 originated in Sweden and arose as they were ordered by the court to retain data under the Swedish Law (Law 2012:278) which Tele2 believed was no longer legal at EU Law following Digital Rights Ireland. Watson et al originated in the UK and followed a judicial review challenge to the passing of the Data Retention and Investigatory Powers Act 2014 (DRIPA), a piece of domestic legislation passed under emergency procedure to replace the provisions of the Data Retention Directive. Both were referred to the CJEU.

They key questions for the CJEU were (1) were domestic provisions which replicated the effects of the Data Retention Directive possibly legal following Digital Rights Ireland? And (2) if the answer to (1) was in the affirmative, were these provisions subject to the safeguards described by the Court in paragraphs 60 to 68 of Digital Rights Ireland?

The Advocate General has now given his opinion on these (and other) matters ...

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