- At Kemp Little, we are known for our ability to serve the very particular needs of a large but diverse technology client base. Our hands-on industry know-how makes us a good fit with many of the world's biggest technology and digital media businesses, yet means we are equally relevant to companies with a technology bias, in sectors such as professional services, financial services, retail, travel and healthcare.
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High court's ruling on the validity of Data Retention and Investigatory Powers Act 2014 (DRIPA)
On 17 July 2015, the High Court ruled that s1 of Data Retention and Investigatory Powers Act 2014 (“DRIPA”) was inconsistent with EU law and thus unlawful. The judicial review was brought by David Davis MP, Tom Watson MP, Peter Brice and Geoffrey Lewis. Unusually the MPs challenged DRIPA using judicial review, rather than in parliament, because the DRIPA Bill was passed using the fast track procedure so was not subject to the usual parliamentary scrutiny and thus the MPs felt that the courts were the only option to challenge the legislation.
The claims were based on the powers to retain and gain access to communication data contained in s1 DRIPA, in particular how this impacted the confidentiality of communications with solicitors and communications with constituents. The claimants argued that s1 DRIPA was contrary to EU law, in particular CJEU’s interpretation of Article 7 (“right to respect for his or her private and family life, home and communications”) and Article 8 (“protection of personal data”) of Charter of Fundamental Rights of the European Union in Digital Rights Ireland Ltd vs Minister of Communications, Marine and Natural Resources (please click here to read our note about this). Member States retain the ability to adopt their own national data retention laws under Article 15(1) of the E-Privacy Directive (2002/58/EC) provided that those laws comply with the fundamental rights principles. So Member States can restrict the scope of rights afforded to individuals where it is “a necessary, appropriate and proportionate measure”.
DRIPA allows the Home Secretary to give a data retention notice to communications companies to retain relevant communications data, including communications of journalists, lawyers, doctors and other correspondence which is normally deemed confidential or privileged. The purposes under which retention notices may be given are not limited to national security or prevention of crime, but also include preventing public disorder, public health and collecting any tax or other levy. Additionally public bodies are able to internally authorise their own access to the communications data. DRIPA contains a “sunset clause” that repeals the legislation on 31 December 2016 (placing the the onus on parliament to enact new primary legislation by that time).
Data retention laws have come to the fore in light of the global threat of terrorism. Many governments, including the UK government, have brought in laws requiring the mandatory retention of communications data, which broadly speaking is data generated in the course of making a telephone call, sending an email or accessing the internet. Communications data does not include the content of the communications; instead is it used to show who was communicating, when, from where and with whom – as well as time and duration of communication. Once retained, the data may be accessed by law enforcement agencies and other public authorities.
DRIPA came into force last year because the CJEU declared in the Digital Rights Ireland case that the previous Data Retention Directive (Directive 2006/24/EC) was invalid as it disproportionately compromised individuals’ rights to privacy and failed to provide sufficient safeguards against unlawful access to and use of their data by public authorities. This declaration of invalidity effectively meant that the UK was in a position where it no longer had an adequate legal basis for law enforcement and intelligence agencies to use communications data to investigate criminal activity. To address this, the UK parliament adopted DRIPA, which came into force on 17 July 2014.
In this case, the High Court stated that any derogation from the fundamental right to respect for private life applies only so far as that derogation is “strictly necessary”. Therefore if legislation is going to reduce the protection afforded to individuals there must be clear and precise rules regarding access to and use of the communications data. Additionally the “serious offences” for which the communications data may be accessed must be precisely defined. The court added that access to communications data by a national authority must be dependent on prior review by a court or an independent administrative body whose decisions seeks to limit access to that to which is strictly necessary. Therefore the High Court ruled that s1 DRIPA is inconsistent with EU laws. The unlawful sections of DRIPA will remain in force until the end of March 2016 to allow time for the government to legislate properly.
Since the judgment, the Home Office has indicated that it will appeal this decision. It went on to state that a more narrow and precise definition of “serious offences” will be too restrictive for the purposes for which access to communications data is required. This decision by the High Court echoes the findings in David Anderson’s report on British surveillance laws that was published earlier this year where Anderson also recommended that the judiciary plays a larger role in approving and authorising requests to intercept communications. Anderson’s report also stressed the importance of governments protecting the rights of its citizens – he succinctly stated that “the State can arrest you or lock you up…the worst Google can do is show you an ad. Safeguards on the exercise of intrusive powers are, for that reason, more important where the State is concerned”. Given that DRIPA will be repealed at the end of 2016, it will be interesting to see how the government incorporates the High Court’s recommendations, as well as the Anderson report, in the draft Communications Data Bill (colloquially referred to as the Snoopers’ Charter) and how it will strike the balance between protecting the individual’s rights to privacy with national security concerns.