BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
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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.”
3. Relevant case-law of the Court of Justice of the European Union
(“CJEU”)
(a) Digital Rights Ireland v. Minister for Communications, Marine and Natural
Resources and Others and Seitinger and Others (Cases C‑293/12 and
C-594/12; ECLI:EU:C:2014:238)
224. In a judgment of 8 April 2014 the Court of Justice of the European
Union (“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 was 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 EU and the right to protection of personal data under Article 8
of the Charter.
225. The access of the competent national authorities to the data
constituted a further interference with those fundamental rights, which the
CJEU considered to be “particularly serious”. The fact that data was
retained and subsequently used without the subscriber or registered user
being informed was, according to the CJEU, likely to generate in the minds
of the persons concerned the feeling that their private lives were the subject
of constant surveillance. The interference satisfied an objective of general
interest, namely to contribute to the fight against serious crime and terrorism