‘References to the repealed Directive shall be construed as references to this Regulation. References to
the Working Party on the Protection of Individuals with regard to the Processing of Personal Data
established by Article 29 of [Directive 95/46] shall be construed as references to the European Data
Protection Board established by this Regulation.’
United Kingdom law
16
Section 94 of the Telecommunications Act 1984, in the version applicable to the facts in the main
proceedings (‘the 1984 Act’), entitled ‘Directions in the interests of national security etc.’, provides:
‘(1)
The Secretary of State may, after consultation with a person to whom this section applies, give
to that person such directions of a general character as appear to the Secretary of State to be necessary
in the interests of national security or relations with the government of a country or territory outside the
United Kingdom.
(2)
If it appears to the Secretary of State to be necessary to do so in the interests of national security
or relations with the government of a country or territory outside the United Kingdom, he may, after
consultation with a person to whom this section applies, give to that person a direction requiring him
(according to the circumstances of the case) to do, or not to do, a particular thing specified in the
direction.
(2A)
The Secretary of State shall not give a direction under subsection (1) or (2) unless he believes
that the conduct required by the direction is proportionate to what is sought to be achieved by that
conduct.
(3)
A person to whom this section applies shall give effect to any direction given to him by the
Secretary of State under this section notwithstanding any other duty imposed on him by or under Part 1
or Chapter 1 of Part 2 of the Communications Act 2003 and, in the case of a direction to a provider of a
public electronic communications network, notwithstanding that it relates to him in a capacity other
than as the provider of such a network.
(4)
The Secretary of State shall lay before each House of Parliament a copy of every direction given
under this section unless he is of [the] opinion that disclosure of the direction is against the interests of
national security or relations with the government of a country or territory outside the United
Kingdom, or the commercial interests of any person.
(5)
A person shall not disclose, or be required by virtue of any enactment or otherwise to disclose,
anything done by virtue of this section if the Secretary of State has notified him that the Secretary of
State is of the opinion that disclosure of that thing is against the interests of national security or
relations with the government of a country or territory outside the United Kingdom, or the commercial
interests of some other person.
…
(8)
This section applies to [the Office of Communications (OFCOM)] and to providers of public
electronic communications networks.’
17
Section 21(4) and (6) of the Regulation of Investigatory Powers Act 2000 (‘the RIPA’) provides:
‘(4) … “communications data” means any of the following—
(a)
any traffic data comprised in or attached to a communication (whether by the sender or
otherwise) for the purposes of any postal service or telecommunication system by means of
which it is being or may be transmitted;
(b)
any information which includes none of the contents of a communication (apart from any
information falling within paragraph (a)) and is about the use made by any person—
(i)
of any postal service or telecommunications service; or