BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
communications services or of public communications networks and
amending Directive 2002/58/EC) was adopted. Prior to the judgment of
2014 declaring it invalid (see paragraph 209 below), it provided, in so far as
relevant:
Article 1 - Subject matter and scope
“1. This Directive aims to harmonise Member States’ provisions concerning the
obligations of the providers of publicly available electronic communications services
or of public communications networks with respect to the retention of certain data
which are generated or processed by them, in order to ensure that the data are
available for the purpose of the investigation, detection and prosecution of serious
crime, as defined by each Member State in its national law.
2. This Directive shall apply to traffic and location data on both legal entities and
natural persons and to the related data necessary to identify the subscriber or
registered user. It shall not apply to the content of electronic communications,
including information consulted using an electronic communications network.”
Article 3 – Obligation to retain data
“1. By way of derogation from Articles 5, 6 and 9 of Directive 2002/58/EC,
Member States shall adopt measures to ensure that the data specified in Article 5 of
this Directive are retained in accordance with the provisions thereof, to the extent that
those data are generated or processed by providers of publicly available electronic
communications services or of a public communications network within their
jurisdiction in the process of supplying the communications services concerned.”
C. Relevant case-law of the Court of Justice of the European Union
(“CJEU”)
1. Digital Rights Ireland Ltd v. Minister for Communications, Marine
and Natural Resources and Others and Kärntner Landesregierung and
Others (Cases C‑293/12 and C‑594/12; ECLI:EU:C:2014:238)
209. In a judgment of 8 April 2014 the CJEU declared invalid the Data
Retention Directive 2006/24/EC laying down the obligation on the
providers of publicly available electronic communication services or of
public communications networks to retain all traffic and location data for
periods from six months to two years, in order to ensure that the data were
available for the purpose of the investigation, detection and prosecution of
serious crime, as defined by each Member State in its national law. The
CJEU noted that, even though the directive did not permit the retention of
the content of the communication, the traffic and location data covered by it
might allow very precise conclusions to be drawn concerning the private
lives of the persons whose data had been retained. Accordingly, the
obligation to retain the data constituted in itself an interference with the
right to respect for private life and communications guaranteed by Article 7
of the Charter of Fundamental Rights of the European Union and the right
to protection of personal data under Article 8 of the Charter.
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