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BREXIT: likely legal challenges

Article 29 Working Party says Data Retention Directive not ‘convincing’

The Article 29 Data Protection Working Party has heavily criticised the draft Data Retention Directive, which was published by the European Commission on 21 September.

The Working Party in Opinion 113/2005, adopted on 21 October, raised a series of objections to the Directive as well as setting out twenty safeguards that the Working Party believed should be included.

The Working Party ‘questions whether the justification for an obligatory and general data retention coming from the competent authorities in Member States is grounded on crystal-clear evidence. The Working Party also doubts whether the proposed data retention periods in the draft Directive are convincing’.

In a forceful statement the Working Party notes ‘imposing the said data retention obliga-tions on communication service providers without having first realised adequate, specific safeguards is not to be accepted within the existing European legal framework.’

The Directive says the Working Party ‘is confronting us with a historical decision. Traffic data retention interferes with the inviolable, fundamen-tal right to confidential communications. Any restric-tion on this fundamental right must be based on a pressing need, should only be allowed in exceptional cases and be the subject of adequate safeguards.’

‘Providers of publicly available communication services would be forced (by the Directive) unprecedentedly to store billions of data relating to the communications of any and all citizens for investigational purposes’ says the Working Party.

‘Terrorism presents our society with a real and pressing challenge. Governments must respond to this challenge in a way that effectively meets their citizens’ need to live in peace and security while not undermining their individual human rights -including the right to data privacy - which are a corner-stone of our democratic society’.

The Working Party argues that any Directive should be subject to the ‘sunset legislation’ concept, with a three-year period being their recom-mended term at the end of which the Directive automati-cally expires unless renewed.

The Working Party calls for the evidence justifying the measures to be evaluated periodically.

Commission Vice President Franco Frattini, responsible for Justice, Freedom and Security, said: “This proposal is a very balanced and constructive one, which takes account of the fundamental rights to security, to a private life and protection of personal data, as well as different interests, in particular those of law enforcement authorities and communications providers.”

Lindsey Greig

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