Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources

• Jurisdiction: Ireland
• Judge: Ms. Justice Costello
• Judgment Date: 19 July 2017
• Neutral Citation: [2017] IEHC 307
• Docket Number: [2006 No. 3785 P]
• Court: High Court
• Date: 19 July 2017

[2017] IEHC 307

THE HIGH COURT

Costello J.

[2006 No. 3785 P]

BETWEEN

DIGITAL RIGHTS IRELAND LIMITED

PLAINTIFF

AND

THE MINISTER FOR COMMUNICATIONS, MARINE AND NATURAL RESOURCES, THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM, THE COMMISSIONER OF AN GARDA SÍOCHÁNA, IRELAND

AND

THE ATTORNEY GENERAL

DEFENDANTS

European Union – Data protection – Constitutionality of Data Retention Directive 2006/24/EC – Arts. 7 and 8 of Charter of Fundamental Rights of the European Union – The Communications (Retention of Data) Act, 2011 – Right to privacy and data protection – Preliminary issue – O. 25 and o. 34, r. 2 of the Rules of the Superior Courts.

Facts: The plaintiff sought an order on the preliminary issue pursuant to o.25 and o.34 r.2 of the Rules of the Superior Courts in relation to the validity of the Communications (Retention of Data) Act, 2011 in the light of the judgment of the Court of Justice of European Union (CJEU) in Digital Rights Ireland Ltd v. Minister for Communications, Marine and Natural Resources, and Others C-293/12 and Karntner Landesregierung and Others (joined cases C-293/12 and C-594/12) EU:C:2013:845 ('Digital Rights') wherein the Directive 2006/24/EC was declared to be invalid being contrary to the Charter of Fundamental Rights of the European Union. The plaintiff also sought an order for referring the said preliminary issue to the CJEU in the alternative. The plaintiff contended that the Act of 2011 should be declared invalid as its provisions were similar to the Directive 2006/24/EC which had already been declared invalid by the CJEU on the basis that the said Directive interfered with the right to respect for private life under art.7 and the right to protection of personal data under Art.8. The plaintiff submitted that the preliminary issues in the present case were readily identifiable and no evidence was required as the argument would be based on comparing the provisions of the domestic law with the rulings of the CJEU. The defendants submitted that a preliminary issue of law could not be decided by disregarding the facts and that the issues could not be properly addressed without appropriate evidence. The defendants contended that they were entitled to lead evidence.

Ms. Justice Costello refused to grant the desired reliefs to the applicant. The Court held that since there were no agreed or undisputed or established facts in the present case, it was not permissible to proceed without evidence. The Court applied the principal propounded in the decision of the Supreme Court in P.J. Carroll & Co. Limited v. the Minister for Health and Children [2005] 1 I.R. 294, wherein, it was held that the defendants were entitled to lead evidence as to the proportionality of the measure adopted in defence of an allegation that the legislation was constitutional. The Court held that the preliminary issue had not been defined with sufficient precision and no specific issues had been identified. The Court further held that it was the discretion of the Court to refer the issues to the CJEU and at the stage, there was no need to refer the present case to the CJEU.

JUDGMENT of Ms. Justice Costello delivered on the 19th day of July, 2017

1 In this case the plaintiff seeks an order setting down for trial as a preliminary matter the European Union Law issues in the proceedings or in the alternative an order of referring to the Court of Justice of the European Union the question: -

'whether, in light of the Provisions of the Charter of Fundamental Rights and Freedoms and the findings of the Court of Justice (sic) in Digital Rights Ireland v. Ireland a domestic legislative measure which requires indiscriminate retention of telecommunications data for a period longer than is required for the legitimate commercial purposes of the telecommunications providers, is valid.'

2 The application is brought pursuant to O. 25 and O. 34, r. 2 of the Rules of the Superior Courts. Order 34 r. 2 provides: -

'If it appear to the Court that there is in any cause or matter a question of law, which it would be convenient to have decided before any evidence is given or any question or issue of fact is tried... the Court may make an order accordingly, and may direct such question of law to be raised for the opinion of the Court, either by special case or in such other manner as the Court may deem expedient, and all such further proceedings as the decision of such question of law may render unnecessary may thereupon be stayed.'

3 Order 25 provides: -

'1. Any party shall be entitled to raise by his pleading any point of law, and any point so raised shall be disposed of by the Judge who tries the cause at or after the trial, provided that by consent of the parties, or by order of the Court on the application of either party, the same may be set down for hearing and disposed of at any time before the trial.

2. If, in the opinion of the Court, the decision of such point of law substantially disposes of the whole action ... the Court may thereupon dismiss the action or make such other order therein as may be just.'

Background

4 The plaintiff is a company limited by guarantee which has as one of its objects the promotion and protection of civil and human rights, particularly those arising in the context of modern communication technologies. In these proceedings, the plaintiff alleges that the defendants have wrongfully exercised control over data in that they have illegally processed and stored data relating to the plaintiff, its members and other mobile phone users contrary to statute European Union law and the Constitution.

5 These proceedings already have a lengthy history. They were commenced by way of plenary summons on the 11th August, 2006, in the wake of the adoption of Directive 2006/24/EC of the European Parliament and of the Council on the 15th March, 2006, on retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC (the Directive). Among other reliefs, the plaintiff sought a reference to the CJEU on the question of where the Directive 2006/24/EC was valid notwithstanding Articles 6 (1) and (2) of the EU Treaty, Articles 10 and 18 of the EC Treaty, Articles 7, 8, 11 and 41 of the Charter of Fundamental Rights and Freedoms ('the Charter') and Article 5 of the EC Treaty.

6 The plaintiff also sought declarations that certain provisions of domestic law were repugnant to the provisions of the Constitution, were incompatible with certain provisions of the European Convention on Human Rights ('ECHR') or were invalid having regard to the provisions of the Charter of Fundamental Rights of the European Union/ 2000/C364/01 ('the Charter') and two decisions in particular of the CJEU, Digital Rights Ireland Ltd v. Minister for Communications, Marine and Natural Resources, and Others C-293/12 and Karntner Landesregierung and Others (joined cases C-293/12 and C-594/12) EU:C:2013:845 (' Digital Rights') and Tele2 Sverige AB v. Post-och telestyrelsen and Secretary of State for the Home Department v. Tom Watson and Others (joined cases C-203/15 and C-698/15) EU:C:2016:970 (' Watson')

7 On the 5th May, 2010, the High Court (McKechnie J.) held that the plaintiff had locus standi to bring an actio popularis and refused the defendants' motion for security for costs. He referred the validity of the Directive to the CJEU under Article 267 of the Treaty on the Functioning of the European Union (TFEU). The Court of Justice declared that the Directive was invalid in a judgment delivered on the 8th April, 2014.

8 Prior to the judgment, the member states had in the meantime introduced national legislation implementing the Directive in their respective states. In light of the decision in Digital Rights, some member states concluded that their domestic legislation was invalid based upon the decision of the CJEU.

9 In Sweden and the United Kingdom issues arose as to whether their respective domestic legislation was valid in light of the decision in Digital Rights. Two requests for a preliminary ruling concerning the interpretation of Article 15 (1) of Directive 2002/58/EC of the European Parliament and of the Council of 12th July, 2002 concerning the processing of personal data and protection of privacy in the electronic communications sector (Directive on Privacy and Electronic Communications) as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25th November, 2009 (the ePrivacy Directive) read in the light of Articles 7 and 8 and Article 52 (1) of the Charter and of the conformity of their respective legislative provisions with EU law. On the 21st December, 2016 the 2016 the court ruled that Article 15 (1) of the ePrivacy Directive must be interpreted as precluding national legislation which, for the purpose of fighting crime, provides for general and indiscriminate retention of all traffic and location data of all subscribers and registered users relating to all means of electronic communication. It also ruled that Article 15 (1) of the ePrivacy Directive must be interpreted as precluding national legislation governing the protection and security of traffic and location data and, in particular, access of the competent national authority to the retained data, where the objective pursued by that access, in the context of fighting crime, is not restricted solely to fighting serious crime, where access is not subject to prior review by a court or an independent administrative authority, and where there is no requirement that the data concerned should be retained within the European Union.

10 The plaintiffs' claim was amended to reflect statutory changes implemented in the State. In particular, the Communications (Retention of Data) Act, 2011 was enacted to give effect...