CHAPTER 5: LEGAL CONSTRAINTS
5.81.
Following Google v Spain, service providers and government agencies that hold
communications data, are data controllers. They should be prepared to receive, and
where appropriate agree, to requests for data destruction.
Pending cases before the CJEU
5.82.
5.83.
Two other cases, though not yet decided by the CJEU, should be mentioned:
(a)
the case referred by the Irish High Court regarding the adequacy of the “safe
harbour” agreement under which data is transferred in bulk to companies such
as Facebook, where it is subject to less onerous data protection rules than in
the EU;100 and
(b)
the pending opinion on the lawfulness of the EU-Canada agreement on sharing
air passenger data in bulk, referred to the CJEU by the European Parliament
on 25 November 2014.101
Both may shed further light on the attitude of the CJEU towards the sharing of bulk
data.
International Law
5.84.
Principles of international law (with the exception of customary international law)
cannot generally be relied upon in the UK courts unless they have been incorporated
into UK domestic legislation.102 Treaty obligations are binding as a matter of
international law; but the jurisprudence of public international law is less complete
than that of the European courts, and adds little to it.
5.85.
Nonetheless, the reports of UN High Commissioners and Special Rapporteurs
command respect, and may in the future be influential in establishing international
norms.
Treaty law
5.86.
The principal relevant Treaty provision is Article 17 of the International Covenant on
Civil and Political Rights 1966 [ICCPR]:
“1. No one shall be subjected to arbitrary or unlawful interference with his
privacy, family, home or correspondence, nor to unlawful attacks on his
honour and reputation.
100
101
102
Case C-362/14 Schrems v Data Protection Commissioner.
https://edri.org/eu-canada-agreement-on-pnr-referred-to-the-cjeu-whats-next/. For EU law on data
surveillance and sharing, see C. Murphy, EU Counter-Terrorism Law (2012), chapter 6.
R (SG and others) v Secretary of State for Work and Pensions [2015] UKSC 16, per Lord Reed at para
90. In an interesting dissenting opinion, Lord Kerr at paras 235-257 challenged this “constitutional
orthodoxy” on the basis that “If the government commits itself to a standard of human rights protection,
it seems to me entirely logical that it should be held to account in the courts as to its actual compliance
with that standard”.
92