In a 12 December opinion, Advocate General (AG) Pedro Cruz Villalon said that the Data Retention Directive is incompatible with the Charter of Fundamental Rights. The Charter requires that any limitation on the exercise of a fundamental right must be provided for by law. The AG also said that the Directive constitutes a serious interference with the fundamental right of citizens to privacy by creating an obligation on telecommunications providers to collect and retain traffic and location data.
Click here to read the AG's opinion.
This opinion stems from the Irish case Digital Rights Ireland Ltd v Minister for Communication & Ors in which the High Court granted the plaintiff standing in respect of the claims regarding rights to privacy and communication. The court’s reasoning was that the Plaintiff was “a sincere and serious litigant” who raised important constitutional issues and sought to protect the public good. Furthermore, the fact that the Irish Human Rights Commission had been joined as amicus curiae supported the argument that this case raised matters of fundamental public importance. The High Court eventually referred the case to the CJEU to consider the compatibility of Directive 2006/24/EC with the Plaintiff’s right to privacy.
Click here to read a February 2012 Bulletin article on the High Court’s referral of the legal question to the CJEU.
Although the AG’s opinion is not binding on the CJEU, it is the role of the AG to propose to the Court, in complete independence, a legal solution to the cases for which they are responsible. The Judges of the CJEU are now beginning their deliberation in this case. Judgment will be given at a later date.
Previously, Digital Rights Ireland applied to be appointed as amicus curiae in EMI Ireland Limited & ors. v UPC Communications Ireland Limited & Ors. Their application was rejected by Mr. Justice Kelly on the basis that Digital Rights Ireland could not be “equated with bodies which to date have been joined as amici. It is not charged in either domestic or international law with a public role in the area which is the subject of litigation”. Furthermore, Justice Kelly found it difficult to see how Digital Rights Ireland could be regarded as a neutral party considering the activities of some of its officers in conducting a “public interest campaign” in areas relating to both domestic and foreign legislation dealing with internet piracy. Costs were awarded against Digital Rights Ireland to the amount of €26,658.15. Upon a successful challenge costs were reduced to €13,700. Digital Rights Ireland is currently fundraising to pay these costs.
Click here to read an article on the Digital Rights Ireland fundraising campaign.