MR JUSTICE BURTON
Approved Judgment
Date, time, and time zone in which email is sent and
received
Data associated with mobile phones:
Phone number of every caller
Serial numbers of phones involved
Time of call
Duration of call
Cell site location
Data associated with web browsers:
Activity including pages the user visits and when visited
User IP address, internet service provider, device
hardware details, operating system, and browser
version. ”
109.
Mr King and Mr Brown, Associate Professor at the Oxford Internet Institute, who
also made a witness statement on behalf of Privacy, have explained how useful
metadata can be in supplying information about the location and correspondents of
the sender, derived from the header of an email, including its timing, particularly in
aggregation with other such data. The Claimants point to the fact that
communications data have been the subject of protection under Article 8 in
Copland v UK [2007] 45 EHRR 37 and, by analogy with EU law (and the Charter
of Fundamental Rights of the European Union), to be derived from Digital Rights
Ireland
v
Minister
for
Communications
and
Others
[2014]
ECLI:EU:C:2014:238.
110.
The Claimants submit that, without the same protection for communications data as
is extended to contents, such data can be used for what they call ‘Big Data’, namely
the building up of a database, whose retention can then be justified by reference to
s.15(3) and (4), on the basis that it was or was likely to become necessary for one of
the permitted purposes. The Claimants submit that Mr Eadie was trying to play
down the safeguard as merely ‘procedural’ so as to avoid confessing the weakness
which the ability to access metadata, related to communications which could not
themselves be accessed, revealed in his defence of the system.
111.
The Respondents counter as follows. First, although they may be driven to accept
that Convention jurisprudence allows that there can be interference with Article 8
by reference to the storing of metadata, nevertheless there is no authority for the
kind of drastic proposition of exclusion of access to metadata for which the
Claimants are contending. In Digital Rights, the European Court made it clear, in
paragraphs 59 to 60 of its judgment, that its invalidating of the Directive which
required storage (for any period) of metadata by the communications networks was
on the ground of an absence of “any relationship between the data whose retention