DRIPA Case Taken to European Court of Justice

DRIPA, the Act that requires internet and phone companies to keep their communications data for a year – and regulates how the polices and security services gain access to it – has been referred to the European Court of Justice by the Court of Appeal for a ruling on its legality.

Deputy Labour leader Tom Watson and former Shadow Home Secretary David Davis originally challenged the legitimacy of the Act in the High Court, which found that it was “inconsistent with European law”. The court ordered that the Act be “disapplied”, but suspended the effect of the order until 31 March 2016 to give the government time to redraft the legislation. The Government appealed this decision to the Court of Appeal, which has referred it to the ECJ.

Kerry Nicholson, News Media Association legal, policy and regulatory affairs advisor, said: “DRIPA makes no provision to offer protection to any sensitive professions: journalists, lawyers, doctors, and MPs have their communications kept indiscriminately, and the safeguards protecting the release of these communications to public authorities and security services are severely lacking. 

“What’s worse, the legislation that is likely to replace it, the Investigatory Powers Bill, does little to remedy these problems. The new Draft Bill also provides insufficient safeguards for journalism. It would enshrine sweeping powers affecting all citizens, including journalists and their sources, while leaving unchanged other surveillance powers used against the press. Comprehensive and stronger safeguards for journalism and journalistic sources are necessary.”

A joint committee has been announced to consider the draft legislation. It will issue a call for evidence and then report by 11 February next year.

Watson and Davis argue that DRIPA allows the police and intelligence agencies to spy on citizens without sufficient safeguards. They point to how the use of the powers under the Act was not limited to serious crime, that individual notices of data retention  were kept secret, and that there is no provision for confidential professions, particularly journalists and lawyers. They also argue that there are not adequate safeguards to prevent the communications data leaving the EU.

The High Court found that sections one and two of the act breached the “British public’s rights to protection of personal data and to respect for private life and communications under the EU Charter of Fundamental Rights” on two grounds. First, that the act failed to ensure data would only be used to deal with serious crime and, secondly, because it did not “require data to be authorized by a court or independent body, which could limit access to and use of data to what is strictly necessary.”

When the Government appealed the decision, the Court of Appeal judges said the issue of data retention was of “general and wide-reaching importance” and it was inevitable it would be referred to the ECJ. They formed a “provisional view” that the precedent case at the ECJ, known as Digital Rights Ireland, “does not lay down mandatory requirements of EU law with which national legislation must comply. That interim conclusion is at odds with the earlier ruling in favour of the MPs.”

The UK has asked the ECJ to expedite the case.