In today’s decision, the European Court, stated that it is possible for the Member State to breach confidentiality of data relating to electronic communications, via legislative measures, in instances of ‘national security’. The issue at hand is the determinability of the threat as being ‘genuine and present, or foreseeable’, a test that will definitely prove controversial in terms of enforceability by national courts. Of course, this test will be subject to the check and balance of national courts, in countries such as Cyprus, or independent administrative authorities in other jurisdictions.
An additional parameter that was set, by the Court is that targeted retention is possible, to what is strictly necessary, as would arise under ‘objective and non-discriminatory factors’ The Court also added that it must be ‘strictly necessary’ on the basis of ‘objective and non-discriminate factors’.
There does not appear to be a significant deviation from the earlier cases of Tele2Sverige and Watson and Others, wherein it was also decided that there should not be a blanket ‘general and indiscriminate’ retention of data. Additionally, the Court highlights that, the implementation of the directive on privacy and electronic communication (Directive 2002/58) should not be against the principles of proportionality and fundamental rights of the Charter, safeguards that were already considered by earlier cases.
Finally, an interesting finding of the Court is that, in terms of the application of the case by national courts, the guidance provided was that on the basis of the principle of effectiveness, the national courts should disregard information and evidence when said information is actually obtained via ‘general and indiscriminate’ route. In many respects, this case would not be a trailblazer for privacy rights nor be characterized as significantly different from the path set by Tele2Sverige. It is, however, a step in the direction of a more effective and cohesive approach to access and retention to electronic communication. What is for certain is that this is not the last we will hear on the matter.
