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EU court’s decision challenges legality of new UK snooper’s charter

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EU court’s decision challenges legality of new UK snooper’s charter

The UK’s 2016 Investigatory Powers Act (the so-called snooper’s charter) establishes broader investigatory powers than the 2014 law. For instance, the new law requires web and phone companies to store all web browsing histories for 12 months and gives police and security services increased access to data.

This was another landmark ruling dealing with the balance between citizen’s privacy and the states’ ability to intrude into it. The judgement followed two references for preliminary ruling made by Swedish and UK judges regarding the general obligation imposed by the two national surveillance laws on providers of electronic communications services to retain data. In particular, the case before  the UK court was brought by the current Brexit secretary, David Davis, when he was still MP, and Tom Watson, Labour’s deputy leader, who were complaining about the mass interception of call record and online messages, the Guardian reports. The case was also supported by a number of organisations such as Liberty, the Open Rights Group and Privacy International

The legal action in front of nation judges was brought after the Digital Ireland judgement of 2014 where the Court of Justice invalidated the European directive on the retention of data (D 2006/24/EC) because it violated the Charter of Fundamental Rights of the European Union. Indeed, the general obligation to retain traffic and location data in relationship with the protection of the the fundamental rights to privacy and data protection was unlawful since it was not limited to what was strictly necessary. 

Shortly after this judgement, concerns regarding the compatibility of national surveillance laws with the ruling started to be widely spread, since some States considered the decision as non-mandatory, the Global Research Institute reports. 

As a result, the 21st December’s new decision focused on what “strictly necessary” means. The Court stated that when data retention is not solely restricted to fighting serious crimes and where access is not subject to prior review by a court or administrative authority, this is unlawful under EU law. In other words, only the objective of fighting serious crimes is capable of justifying such an interference in one individual’s fundamental right to privacy. 

This new ruling marks a new step in pushing EU Member States to review their mass surveillance regimes to ensure that they are in compliance with the judgement and ultimately with EU law and its human rights standards. This will take place in a sensitive climate following the recent terrorist attacks in Nice, Brussels, Paris and Berlin, Lexology points out. However, as the Guardian suggests, the judgement clearly states that a national surveillance law is lawful as long as digital surveillance is carried out to fight terrorism and serious crime and ensuring proper judicial safeguards. 

From the UK perspective,the government will have to significantly reduce the reach of its surveillance legislation in order to comply with the European judgment,. This could significantly diminish the number of bodies that can access the browsing histories of citizens, The Telegraph says. Moreover the new ruling is likely to give raise to a new Brexit dilemma. The UK could decide not to amend the snooper’s charter in order to comply with EU law because of its upcoming leaving the Union. In the light of the post-Brexit scenario, the UK would need to receive an adequacy decision from the European Commission which would judge UK data protection law as ensuring an adequate level of protection as compared to the European standards as a result of which data will be able to freely flow between the UK and the EU, a decision that surely will not come if the UK chooses not to make amendments to the current legislation, according to Lexology. It seems then that the UK will be chased by the ever-hated European authorities long after Brexit. 

The case will now return to the court of appeal to be resolved in terms of UK legislation. According to the Independent, the UK Government has vowed to appeal against the decision.

(Image source)

Author

Ilaria Fevola

Date

2017-01-09 15:26

Author information

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