Graham Dwyer action hears position of European Court of Justice on telecommunications data

By Ann O'Loughlin

The European Court of Justice (ECJ) has found that domestic laws of EU member states allowing the indiscriminate retention of telecommunications data are "not permissible" and are "off the menu," the High Court has heard.

On the third day of High Court action bought by convicted murderer Graham Dywer his counsel Remy Farrell SC said a 2016 ruling by the ECJ found domestic laws allowing telecommunication data be retained and accessed without any safeguards being present breach privacy rights contained in the European Union Charter.

Dwyer claims the 2011 Communications (Retention of Data) Act, which allowed Gardai obtain and use data generated by Dwyer's mobile phone during his 2015 trial for the murder of childcare worked Elaine O' Hara, breached his privacy rights and should not have been used.

He claims the 2011 Act was introduced to give effect to the 2006 EU directive concerning the retention and use of data.

In 2014 the European Court of Justice (ECJ) found the directive was invalid.

Dwyer's claims the 2011 Act suffers from the same flaws identified by the ECJ.

Dwyer claims certain provisions of the 2011 laws breach his privacy rights under the Irish Constitution, European Convention on Human Rights as well as the EU Charter.

In his action against the Garda Commissioner, and the State, Dwyer seeks various declarations that his privacy rights have been breached.

The application is opposed, and the respondents say Dwyer is not entitled to any of the declarations sought.

In submissions to the court Mr Farrell said in addition to the 2014 ECJ decision, following a case brought by Digital Rights Ireland Ltd against the Minister for Communications, an ECJ ruling in 2016 also supports Dwyer's application to have provisions of the 2011 Act struck down.

Counsel said following a case brought by multi-national communications operator Tele 2 over Sweden's data retention laws the ECJ ruled that indiscriminate retention of data, where users are not made aware private data can be accessed by parties including the police, is not allowed counsel said.

The ECJ found that targeted data retention regimes might be allowed if certain safeguards were present and only data that is strictly necessary is accessed and used, counsel said.

Under the 2011 Act there are "no independent safeguards present," counsel said.

The 2016 ruling counsel said "tied up" some of the issues left over from the 2014 decision, and specifically dealt with domestic laws of a EU member state concerning data retention.

Counsel said the respondents to Dwyer's action seemed to be arguing that considerations such as the use of data retention regimes in the investigation of serious crimes including the prevention of terrorist attacks were not taken into account by the ECJ.

Counsel said that was not the case.

The ECJ had considered information such as how the French authorities used retained data in the investigation or terror attacks on their soil, and to track French citizens who had gone to fight in the Middle East before arriving at its decision.

The ECJ's ruling in 2016 was also referred to in a report by former Chief Justice John Murray's on Ireland's data retention regime, which described the 2001 Act as being contrary to EU laws and amounted to mass surveillance.

"While that report was advisory", counsel said "it was difficult to imagine a more stark rebuke," counsel said.

Cork born Dwyer (45) denies killing Ms O'Hara, and his appeal against his conviction is pending before the Court of Appeal.

The high court action, before Mr Justice Tony O'Connor, continues.

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