EU expert deals blow to Irish data laws

EU Court likely to agree with opinion of its legal adviser on Dwyer case

Graham Dwyer is seeing to overturn his murder conviction. Picture: Collins Courts

The EU’s top legal adviser has said Ireland’s system of mass retention of mobile phone traffic data for the investigation of serious crime breaches EU laws on privacy.

The Advocate General of the EU Court of Justice (ECJ) said such broad retention was only permitted in situations of a serious threat to national security.

But the court’s legal expert pointed out that laws enabling the targeted retention of traffic in cases of serious crime is allowed once it is subjected to prior independent authorisation.

The legal opinion will now go to the full court, which will issue a final ruling early next year. Legal experts believe that given the adviser was reiterating previous rulings of the court on the matter, the ECJ will most likely agree with the opinion.

The court is dealing with requests from three countries, including Ireland, for rulings on the matter. 

The Supreme Court referred six questions to the court in relation to a civil case taken by Graham Dwyer, who was convicted in 2015 of the murder of Elaine O’Hara, with mobile phone data playing a key role in the successful prosecution.

He was successful in the High Court which ruled in December 2018 that the Communications (Retention of Data) Act 2011 breached EU privacy directives and the EU charter of fundamental rights.

The State appealed this decision to the Supreme Court, which referred six questions to the ECJ in October 2020.

Dwyer is awaiting the Supreme Court ruling as part of his separate case before the Court of Appeal seeking to overturn his murder conviction.

Supreme Court’s questions dealt with in previous rulings

The Spanish Advocate General said the answers to all of the Supreme Court’s questions were already dealt with in previous rulings of the ECJ or could be “inferred from them without difficulty”.

A statement on his opinion said: “Advocate General Campos Sánchez-Bordona reiterates that the general and indiscriminate retention of traffic and location data relating to electronic communications is permitted only in the event of a serious threat to national security.” 

It added: “By permitting, for reasons going beyond those inherent in the protection of national security, the preventive, general and indiscriminate retention of traffic and location data of all subscribers for a period of two years, Irish legislation does not therefore comply with the directive on privacy and electronic communications.” 

The legal adviser said that, in addition, access by the competent national authorities to retained data “does not appear to be subject to prior review by a court or an independent authority”, as required by the case-law of the court, but to the discretion of a police officer of a certain rank.

“The Supreme Court will have to ascertain whether that official satisfies the conditions laid down in the case-law relating to the status of ‘independent authority’ and whether it is a ‘third party’ in relation to the authority requesting access,” it says.

“The Advocate General also points out that that review must take place before, not after, access to the data.”