General and Indiscriminate Retention of all Data.

Joined cases C-698/15 R (Watson, Brice & Lewis) v Secretary of State for the Home Department and C-203/15 Tele 2 Sverige AB v Post- och Telestyrelsen

The Grand Chamber of the Court of Justice of the European Union ruled that national legislation which provides for “general and indiscriminate retention of all traffic and location data of all subscribers and registered users relating to all means of electronic communication” is prohibited by EU law.

The case relates to Member States laws that require telecoms companies to store data on individuals so that they can be accessed by intelligence and law enforcement agencies. This data includes information about telephone calls, messages and emails, information tracking the movements of individuals, subscriber data and IP addresses.

In 2014, the CJEU’s Digital Rights Ireland judgment ruled that the EU’s ‘data retention’ Directive 2006/24/EC, which required telecoms companies to store such data for up to 2 years, was contrary to Article 7 and 8 of the EU Charter of Fundamental Rights (“CFR”).

In two joined cases, the Court of Justice was asked to rule on the application of the e-privacy Directive (2002/58) and Articles 7 and 8 on Member States’ data retention and data access regimes. Consistent with the Opinion of its Advocate General, the Court concluded that “general and indiscriminate retention” was a “very far-reaching” and “particularly serious” interference with Articles 7 and 8 CFR. It concluded that such retention must be restricted to “fighting serious crime”, access to retained data should be “subject to prior review by a court or an independent administrative authority” except in cases of “validly established urgency”, the affected persons should be notified that access has been given to their retained data “as soon as that notification is no longer liable to jeopardise the investigations being undertaken by those authorities” and the relevant data “should be retained within the European Union”.

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