The CJEU hears a case entitled G.D. tomorrow involving the retention of call data, under the Communications (Retention of Data) Act, 2011.
This 2011 Act mandates the retention of raw telephone call data for a period of 2 years; and
Internet metadata for a period of 1 year.
It replaced section 63 of the Criminal Justice (Terrorist Offences) Act 2005 which mandated retention for 3 years in time.
The 2011 Act, was a piece of primary legislation debated fully in the Oireachtas, with noted principles and policies that was designed inter alia to give effect to the Data Retention Enforcement Directive 2006/24/EC.
Primary legislation, owing to the fact that at the time of drafting for transposition, amendments to the Constitution in or around Articles 29.4 concerning the Lisbon Treaty were not enacted yet, and due to quite old case law concerning secondary legislation enabling offences.
Concern also arose around s.3 of the European Communities Act, 1972 concerning the creation and investigation of indictable offences. Dail/Seanad debates indicated that this might be an issue.
A "Serious Offence" here is codified here in the Bail Act, 1997 and is an offence for which a person of full capacity and not previously convicted may be punished by a term of imprisonment for a term of 5 years or by a more severe penalty.
This is an important point as concerns arose over smaller offences/regulatory offences at the time and accessing retained data.
Moving on, the DRED 2006/24/EC was annulled by the CJEU based upon another case referred by Ireland in Digital Rights Ireland v Ireland - McKechnie J:…
CJEU Judgment:…
AG Opinion - Cruz Villalón:…
The judgments giving rise to the hearing tomorrow are:
1. High Court - O'Connor…
2. High Court - O'Connor:…
3. Supreme Court - Clarke CJ:…
The questions referred by the Supreme Court are six in number and concern mostly Article 15 of Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector.
The questions are here:…
The background is set out in the Supreme Court Article 267 Reference Order,…
This is a case of significance in the communications and law enforcement sphere for a number of significant and relative self-explanatory reasons. I suggest having kept an eye on this for some years, that TEU Article 6 might be the place where the answers eventually emerge.
As with any TFEU Art 267 Preliminary Reference Procedure, the referring court will ultimately resolve the issues before it. The Supreme Court judgment rendered by Clarke CJ is notable for certain case references to what the court might do once the six questions are answered.

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More from @ronanlupton

12 Sep
Took dinner last night @ChapterOneByMV and had the tasting menu ‘blind’. Believe the hype - it is next level dining.

If it isn’t a three star venue in the next round or shortly thereafter I’ll be quite surprised.
Sometimes a tasting menu can be risky as you mightn’t like everything on it, particularly if you don’t read the menu beforehand. That didn’t occur.

The canapés were excellent including a much enjoyed Mossfield Gouda from County Offaly, and an unusual spoon presented radish bite.
The service was impeccable, as was the food - end-to-end. The Kolonne Null Riesling 2020 - Edition Axel Pauly was also great to know about (remarkably drinkable NA Riesling).

Well done! 🔥
Read 4 tweets
3 Nov 20
@maireadenright has an interesting and thought provoking piece in the Times today.

Stasi archive shows way for institutional abuse record-keeping…
When one tracks the very basis for Privacy and shortly later on Data Protection rights and law in the European Union, one need only look to the aftermath of World War II the Universal Declaration of Human Rights (UDHR) in 1948; and in 1950 the ECHR.
Data protection coming in the 1970s with the German State of Hesse adopting the first DP law, followed by Sweden in 1973 and FR, DE, NL and UK in the 1980s. The COE adopting Convention 108 in 1981.
Read 7 tweets
2 Nov 20
This is an important amendment and one which to my mind closes off a fairly significant legislative unintended consequence.
Any amendment should cater for scenarios where the child is possibly a stranger to the accused. Side step guarded anonymity and possible jigsaw identification from pre charge reporting. This is tricky, but this draft seems to work.
I see that @SenatorMcDowell also has an amendment that also makes some sensible suggestions.
Read 4 tweets
24 Oct 20
On every side of a case there is a right, a believed truth, and a position. In many instances the only way to resolve who is actually right in fact or at law, is to litigate the particular issue.
Litigation comes with great burdens. Two such burdens (and there are many more) being cost and the exposure of matters and people in open court that ordinarily may not wish for such outings. Take for example a defamation, injury, or a tragic loss.
Courts too, are not infallible. So, often the most complicated of cases only become resolved at appellate level, and where matters of European Union law arise that are not so obvious or clear, they must be referred to the Court of Justice in Luxembourg.
Read 12 tweets
12 Jul 20
This Thursday sees judgment in Facebook Ireland and Schrems in
Case C-311/18 at 09:30 CET.
The case was controversial for a number of reasons. First, SCCs - Standard Contractual Clauses, the now outdated clauses that undertakings can use for cross border data flows Decision 2010/87; and
Second, Privacy Shield. Which is an agreement between the US and EU from July 2016 concerning data transfers.
Read 10 tweets

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