A Threat To Human Rights? The Novel E-Privacy Rule In Addition To Around Thoughts On Tele2 In Addition To Watson

Matthew White, Ph.D candidate, Sheffield Hallam University

Introduction

In a follow-up to finally Christmas’s post, on 10 Jan 2017, the European Commission released the official version of the proposed Regulation on Privacy too Electronic Communications (e-Privacy Regs). Just as the finally shipping concerned the item human face of information retention, this shipping volition too.

Just as the old Professor Lorna Woods.

So, when is the essence of the correct adversely affected?

Before discussing certainly aspects of Tele2 too Watson, it is showtime of import to line attending to the provision which enables information retentiveness inwards the novel e-Privacy Regs. Article xi allows the European Union or its Member United States of America to restrain the rights contained inwards Articles 5-8 (confidentiality of communications, permissions on processing, storage too erasure of electronic communications information too protection of information stored inwards too related to end-users’ terminal equipment). From Article 11, it is clear that this tin include information retentiveness obligations, so long as they honour the essence of the correct too are necessary, appropriate too proportionate. In Tele2 too Watson the CJEU noted that whatever limitation of rights recognised yesteryear the CFR must honour the essence of said rights [94]. The CJEU accepted the Advocate General (AG)’s Opinion that information retentiveness creates an as serious interference as interception too that the risks associated amongst the access to communications maybe greater than access to the content of communications [99]. Yet the CJEU were reluctant to concur that information retentiveness (and access to) adversely affects the essence of those rights [101]. This appears to highlight a occupation inwards the CJEU’s reasoning, if the CJEU, similar the AG convey that retentiveness of too access to communications information is at to the lowest degree on par amongst access to the content, it makes lilliputian feel to so endure reluctant to concur that information retentiveness adversely affects the essence of those rights. The CJEU does so without making whatever distinction or reasoning for this differential treatment, too thus serves to highlight that peradventure the CJEU themselves practise non fully honour the essence of those rights inwards the context of information retention.

The CJEU’s answer seems only express grab all powers

The thrust of the CJEU’s judgment inwards Tele2 too Watson was that full general too indiscriminate information retentiveness obligations are prohibited at an European Union level. But as I direct maintain highlighted previously, the CJEU’s answer was only inwards response to a rattling wide interrogation from Sweden, which asked was:

[A] full general obligation to retain traffic information roofing all persons, all agency of electronic communication too all traffic information without whatever distinctions, limitations or exceptions for the role of combating crime…compatible amongst [EU law]?

Therefore, provided that national laws practise non render for the capturing of all information of all subscribers too users for all services inwards i brutal swoop, this may endure argued to endure compatible amongst European Union law. Both the e-Privacy Regs too the CJEU refer to ‘targeted’ retentiveness [108, 113]. The CJEU gave an illustration of geographical criterions for retentiveness inwards which David Anderson Q.C. asks whether the CJEU meant that ‘it could endure acceptable to perform “general too indiscriminate retention” of information generated yesteryear persons living inwards a item town, or housing estate, whereas it would non endure acceptable to retain the information of persons living elsewhere? This is exclusively possible given the reference from Sweden too the answer from the CJEU. In essence the CJEU direct maintain permitted discriminatory full general too indiscriminate information retentiveness which would inwards whatever effect honour the essence of those rights.

Data retentiveness is our cake, too only nosotros tin swallow it

H5N1 finally indicate on Tele2 too Watson was that the CJEU held that national laws on information retentiveness are inside the ambit of European Union police [81]. This yesteryear itself may non heighten whatever concerns nearly protecting substitution rights, but it is what the CJEU rules later on on inwards the judgment that may endure of concern. The CJEU held that the interpretation of the e-Privacy Directive (and hence national Member State information retentiveness laws) “must endure undertaken solely inwards the low-cal of the substitution rights guaranteed yesteryear the Charter” [128]. The CJEU has seemingly given itself exclusive competence to decide how rights are best protected inwards the champaign of information retention. It is clear from the subsequent paragraph that the CJEU seeks to protect the autonomy of European Union police to a higher house anything else, fifty-fifty substitution rights [129]. This is despite the ECHR forming full general principles of European Union police too is mentioned inwards Article 15(1) (refers Article 6(3) of the Treaty of the European Union (TEU) specifically referring to the ECHR as such). Article xi of the e-Privacy Regs refers to restrictions respecting the ‘essence of substitution rights too freedoms’ too only fourth dimension volition tell whether the CJEU would translate this as only referring to the CFR. Recital 27 of the e-Privacy Regs exactly similar Recital 10 too thirty of the e-Privacy Directive refers to compliance amongst the ECHR, but as highlighted previously, Recitals are non legally binding.

Is the CJEU assuming also much?

H5N1 farther concern, is that had the European Commission added full general principles of European Union police into Article 11, the CJEU may only direct maintain ignored it, exactly as it has done inwards Tele2 too Watson. The occupation amongst the CJEU’s approach is that it assumes that this judgment offers an adequate protection of human rights inwards this context. The ECHR has ever been the minimum floor, but it appears the CJEU wants the CFR to endure the ceiling whether it endure national human rights protection, or protection guaranteed yesteryear the ECHR. What if that ceiling is lower than the floor? The AG inwards Tele2 too Watson stressed that the CFR must never endure inferior to the ECHR [141]. But I direct maintain argued before, the European Union jurisprudence on information retentiveness is exactly that, offering inferior protection to the ECHR, too the qualification yesteryear the CJEU inwards Tele2 too Watson does non alter this. This seat is strengthened yesteryear Judge Pinto De Albuquerque inwards his concurring catch inwards the European Court of Human Rights judgment inwards Szabo. He believed that:

[M]andatory third-party information retention, whereby Governments require telephone companies too Internet service providers to shop metadata nearly their customers’ communications too place for subsequent law-enforcement too intelligence agency access, appeared neither necessary nor proportionate [6].

Of course, Judge Pinto De Albuquerque could direct maintain been referring to the type of tertiary political party information retentiveness which requires Internet Service Providers (ISPs) to intercept information from Over The Top (OTT) services, but his description is to a greater extent than inwards occupation amongst information retentiveness of services’ ain users too subscribers.

Conclusions

Although the CJEU has prohibited full general indiscriminate information retention, the CJEU does non seem to direct maintain prevented targeted indiscriminate information retention. If the European Court of Human Rights (ECtHR) were to ever dominion on information retentiveness too follow its jurisprudence too the catch of Judge Pinto De Albuquerque, this may pose European Union police inwards violation of the ECHR. This would ultimately pose Member United States of America inwards a damned if they do, damned if they practise non situation, comply amongst the ECHR, too violate European Union police autonomy; comply amongst European Union police too violate the ECHR. When the minimum standards of human rights protection inwards this context are non adhered to, because of European Union law, the ECHR should prevail. As anything less is a threat to human rights, pregnant that the (even if good intentioned) CJEU tin also be.

JHA4: chapter II:7

Photo credit: goldenfrog.com

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