In 2006 the EU issued its Data Retention Directive. According to that Directive, EU Member States had to store electronic telecommunications data for at least six months and at most 24 months for investigating, detecting and prosecuting serious crime.
The directive was invalidated by the CJEU with its Digital Rights Ireland judgment in 2014, where it held that the directive provided insufficient safeguards against interferences with the rights to privacy and data protection.
In the aftermath of the above judgement, two references for a preliminary ruling were made to the Court, in relation to the general obligation imposed, in Sweden and in the UK, on providers of electronic communications services to retain their clients’ data.
In its eagerly anticipated Judgment in Joined Cases C-203/15, C-698/15, the Court ruled that EU law precludes a general and indiscriminate retention of traffic data and location data by the national legislation of the member-states. Targeted retention of data may only be allowed as a preventive measure, said the Court, when this is solely for the purpose of fighting serious crime. Even in this exceptional case, however, such retention should be limited to what is strictly necessary, with respect to the categories of the retained data, the means of communication affected, the duration and the persons concerned.
Finally, the Court held that access of national authorities to the retained data must be subject to certain conditions, including prior review by an independent authority and the data being retained within the EU.
In Greece, Law 3917/2011 that transposed the Data Retention Directive is still in force and obliges providers of electronic communications services to identify and retain the source, destination, date, time, duration, type and equipment of a communication for 12 months. The list of data retained only excludes the content of the information communicated and may easily identify a wide ambit of the citizens’ social interactions, a situation that leaves their data vulnerable to uses potentially detrimental to privacy or, more broadly, fraudulent or even malicious.
The recent CJEU judgment is expected to trigger some activity at both a judicial and legislative national level, leading to the annulment and/or amendment of the relevant law. This amendment, however, should be effected in such a way that public safety is efficiently safeguarded, whereas at the same time no compromises are made to the rights of natural persons with regard to the processing of their personal data.
In the end, perhaps, it would be more meaningful if we distinguished between “legal thinking and knowledge” on the one hand, and “legal principles” on the other. Professor Bogdan’s 1978 article shows that academic commentary on the relevant legal issues was already then at an advanced stage. Looking, however at modern technological applications such as facial recognition, or Internet of Things, it is striking in how much detail the legal issues arising therefrom are analyzed by the academia and the international legal community. By realizing this, we may arguably assume that legal thinking and knowledge, as such, is not necessarily always the tortoise while technology is the hare disappearing into the horizon.
