23 April 2012

Some Good News On Data Retention

Image: Data Center Tech Museum San Jose California by mrkathika on Flickr
Data Center Tech Museum San Jose California

Last week the Court of the European Union issued its long awaited ruling in the case of

Bonnier Audio vs ePhone

that represents a clash between two fundamental rights, the one being that on property, or intellectual property in particular and the other one being the right to data protection and privacy of individuals.

I will not discuss the case at length, but shall invite English readers to take a look at EDRI´s analysis and German readers to the brilliant breakdown of Dr Hans Peter Lehofer, who is a member of Austria´s Supreme Administrative Court.

There is a certain portion contained in the Bonnier ruling that caused my heart to beat faster and you can find it here

44. With regard to the main proceedings, it must be noted that the legislation at issue pursues an objective different from that pursued by Directive 2006/24. It concerns the communication of data, in civil proceedings, in order to obtain a declaration that there has been an infringement of intellectual property rights.

45. That legislation does not, therefore, fall within the material scope of Directive 2006/24.

What does that mean?

Basically, the Court opines that Directive 2002/58/EC allows the EU member states to introduce a national legislation, according to which communication data may be retained for a certain period of time and be disclosed to right holders attempting to enforce their rights.

However, such retention and disclosure needs always be subjected to a fair balance between the various applicable fundamental rights.

Conversely, the data retained under the Directive 2006/24 must not be used for the enforcement of intellectual property rights, full stop.

And that is not all

You may well remember that two years ago the German Constitutional Court smashed the country´s data retention legislation. Since then the coalition parties of the German government have been desperately struggling to agree to a new set of rules, which needs to comply with said court´s prescription.

From what I read in today´s Bild Zeitung, however, that agreement is not likely to be achieved very soon.

These are really good news, are they not?

Leave a Reply

CommentLuv badge