Judgment Approved by the court for handing down.
Davis & Ors v SSHD
society to safeguard national security (i.e. State security),
defence, public security, and the prevention, investigation,
detection and prosecution of criminal offences or of
unauthorised use or the electronic communications system, as
referred to in Article 13(1) of Directive 95/46/EC. To this end,
Member States may, inter alia, adopt legislative measures
providing for the retention of data for a limited period justified
on the grounds laid down in this paragraph. All the measures
referred to in this paragraph shall be in accordance with the
general principles of Community law, including those referred
to in Article 6(1) and (2) of the Treaty on European Union.”
27.
Article 5 of the e-Privacy Directive requires that the confidentiality of
communications be ensured except when access is legally authorised in accordance
with Article 15(1). This permits legislation to restrict the scope of the rights otherwise
protected by the Directive “when such restriction constitutes a necessary, appropriate
and proportionate measure within a democratic society to safeguard national security
(i.e. state security), defence, public security, and the prevention, investigation,
detection and prosecution of criminal offences or of unauthorised use of electronic
communication system, as referred to in Article 13(1) of Directive 95/46/EC [the Data
Retention Directive]. To this end, Member States may, inter alia, adopt legislative
measures providing for the retention of data for a limited period justified on the
grounds laid down in the paragraph.”
The Data Retention Directive
28.
Directive 2006/24/EC of the European Parliament and of the Council of 15 March
2006 on the retention of data generated or processed in connection with the provision
of publicly available electronic communications services or of public communications
networks and amending Directive 2002/58/EC (“the Data Retention Directive”)
sought to harmonise the communications data retention arrangements across the EU.
29.
The need for an EU-wide approach arose from an increasing recognition by the
Member States of the importance of communications data for the investigation,
detection and prosecution of crime, coupled with the differences between national
data retention regimes which were creating barriers to free movement of services in
the internal market. These matters are recorded in the recitals to the Data Retention
Directive:
“(5) Several Member States have adopted legislation providing
for the retention of data by service providers for the prevention,
investigation, detection, and prosecution of criminal offences.
Those national provisions vary considerably.
(6) The legal and technical differences between national
provisions concerning the retention of data for the purpose of
prevention, investigation, detection and prosecution of criminal
offences present obstacles to the internal market for electronic
communications, since service providers are faced with
different requirements regarding the types of traffic and