Bloomberg Law: Privacy & Data Security brings you single-source access to the expertise of Bloomberg Law’s privacy and data security editorial team, contributing practitioners,...
June 30 — The Austrian Constitutional Court (VfGH) June 27 nullified the country's data retention law, becoming the first European Union member state to move to implement the ruling by the EU's highest court that the Data Retention Directive (2006/24/EC) is invalid.
The Austrian court ruling reflects the reality of the need to eliminate laws in member states that transposed the Data Retention Directive, which was recently nullified by the European Court of Justice court, Lukas Feiler of Baker & McKenzie LLP in Vienna, told Bloomberg BNA June 30.
Amid continuing concerns about government surveillance, the European Court of Justice ruled in April that the Data Retention Directive contravenes the privacy rights of individuals and is therefore invalid. The directive required EU member states to adopt laws obliging telecommunications companies and Internet service providers to retain certain unique user data for up to two years, and to provide the data to law enforcement authorities if requested.
The Austrian ruling is “very significant in the sense that it is the first constitutional court of a member state that has followed the European Court of Justice,” Feiler said. Austria “is setting a very good example of how to implement the ECJ's decision and that is by invalidating national implementation of the directive,” he said.
The VfGH ruling overturned May 2011 data retention amendments to the Austria Telecommunications Act 2003, the Security Police Act and the Code of Criminal Procedure. The court said the amendments contradict “the fundamental right to data protection as well as Article 8 of the European Convention on Human Rights (Right to Respect for Private and Family Life),” the court said in a statement announcing the ruling.
The VfGH's legal reasoning is in line with the ECJ's reasoning, Feiler said.
The ECJ ruled the directive contravened the privacy rights of individuals and violated the principle of proportionality, despite some legitimate grounds for retention of communications traffic data for law enforcement and antiterrorism purposes. Similarly, the VfGH ruled that although data retention regulations “may be admissible to fight serious crime,” they must conform to data protection requirements and the Convention on Human Rights, according to the Austrian court's statement.
“In their context, the data retention provisions in the Telecommunications Act, in the Code of Criminal Procedure, and in the Security Police Act now challenged constitute an excessive interference and such a violation of the fundamental right to data protection,” the court statement said.
Austria's now defunct data retention legislation required telecommunications, e-mail and Internet service providers to save data, such as login names, Internet protocol addresses, user names and addresses, login and logout times and the addresses of incoming and outgoing e-mails, for six months. The law didn't require the content of e-mails or phone calls to be stored.
Both the EU and Austrian court decisions will make it difficult for legislators to move ahead with any further data retention laws in Europe, Feiler said.
“My assessment would be that this is dead in the water, there will not be a second data retention directive,” Feiler predicted. “Specifically in Austria, there will be no attempt to legislate around the ECJ's decision and now around the Austrian Constitutional Court's decision because requirements formulated by both courts are so strict,” he said.
It would be impossible for lawmakers to formulate data retention legislation that would meet those requirements, he said.
Data protection authorities in the EU member states welcomed the ECJ ruling when it was announced, but offered differing views on how they would act regarding complaints and enforcement issues related to the laws that transposed the data retention directive while awaiting action by courts and legislatures in their countries.
To contact the reporter on this story: Jabeen Bhatti in Berlin at firstname.lastname@example.org
To contact the editor responsible for this story: Donald G. Aplin at email@example.com
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)