The impact of the judgment annulling the data retention directive on European data retention regimes in the light of the privacy versus security debate

Abstract

Data retention regimes have been conceived of as necessary tools in the fight against terrorism and as such have been brought into force in several European states. The EU enacted the Data Retention Directive in the interest of achieving some degree of harmonisation and in doing so protecting the functioning of the internal market. However these initiatives have caused controversy as a result of their impact on fundamental rights, in particular the rights to privacy and data protection, regarded as essential to safeguard the democratic fabric of our societies. On the 8th April 2014 the Court of Justice of the European Union in joined cases Digital Rights Ireland and Seitlinger and Others (C-293/12 and C-594/12), delivered a long awaited judgment annulling the Data Retention Directive on the grounds of violation of the EU Charter. This landmark judgment, the first to ever annul a whole legal instrument, sent ripples across the EU and domestic spheres. This thesis presents a study of the legal arguments arising in the judgment annulling the Data Retention Directive, and the subsequent implications thereof on other EU and domestic data retention regimes. Due consideration shall be given to the myriad of controversies and debates surrounding data retention regimes generally, and the Data Retention Directive specifically which did not cease upon the Data Retention Directive judgment. Rather an evaluation of the existing data retention regimes at domestic level will show that whilst in certain respects the Directive has been influential, by provoking the amendment or annulment of domestic transposition regimes, other Member States’ domestic laws are still in the midst of controversy. Moreover while acknowledging that Malta is yet to challenge the domestic law an analysis of our current domestic situation shall ensue whereby the author considers proposed amendments. Moreover such controversies shall also extend to proposed future data retention regimes, which in light of the Data Protection Reform Package also discussed in this dissertation, shall be susceptible to more stringent measures. In conclusion a checklist of attributes that a new proposed data retention regime for Europe should take into account is presented.