6. April 2022
In the press release of the judgment of 5.4.2022, the ECJ has once again ruled that the collection of private communications data is unlawful without any reason or limit. This reinforces the rulings of 2014, 2016 and 2020, according to which changes are necessary at EU and national level.
In this judgment, the ECJ states that the decision to allow data retention as evidence in the case of a long-standing murder case is for the national court in Ireland.
Questions regarding this issue were submitted in 2020 by Germany, France and Ireland. The EU Advocate General confirmed, in a legally non-binding manner, the incompatibility of national laws with EU fundamental rights.
However, a first exception to data retention resulted from the 2020 judgment, according to which, in the event of a serious threat to national security, storage for a limited period and subject to judicial review was recognized as permissible.
Subsequently, a judgment in 2021 stated that national law must provide clear and precise rules with minimum conditions for the purpose of preventing abuse.
According to the ECJ, an without cause storage with restriction should be allowed in the following cases:
- When limited to specific individuals or locations;
- No concrete evidence of crime necessary, local crime rate is sufficient;
- Frequently visited locations such as airports and train stations;
- When national laws require the identity of prepaid cardholders to be stored;
- Quick freeze, an immediate backup and temporary data storage if there is suspicion of crime.
All of these are to be used only to combat serious crime or prevent threats to national security.
In Germany, Justice Minister Marco Buschmann is in favor of a quick freeze solution as an alternative that preserves fundamental rights. However, the EU states are to work on a legally compliant option for data retention despite the ECJ’s criticism of this principle.
21. September 2020
Lawyer and privacy activist Maximilian Schrems has become known for his legal actions leading to the invalidation of “Safe Harbor” in 2015 and of the “EU-U.S. Privacy Shield” this year (we reported). Following the landmark court decision on the “EU-U.S. Privacy Shield”, Schrems recently announced on the website of his NGO “noyb” (non-of-your-business) that he has filed 101 complaints against 101 European companies in 30 different EU and EEA countries with the responsible Data Protection Authorities. Schrems exercised the right to lodge a complaint with the supervisory authority that every data subject has if he or she considers that the processing of personal data relating to him or her infringes the Regulation, pursuant to Art. 77 GDPR.
The complaints concern the companies’ continued use of Google Analytics and Facebook Connect that transfer personal data about each website visitor (at least IP-address and Cookie data) to Google and Facebook which reside in the United States and fall under U.S. surveillance laws, such as FISA 702. Schrems also published a list of the 101 companies which include Sky Deutschland, the University of Luxembourg and the Cyprus Football Association. With his symbolic action against 101 companies, Schrems wanted to point to the widespread inactivity among many companies that still do not take the data protection rights of individuals seriously despite the recent ruling by the Court of Justice of the European Union.
In response, the European Data Protection Board (“EDPB”) has set up a “task force” to handle complaints against European companies using Google Analytics and Facebook services. The taskforce shall analyse the matter and ensure a close cooperation among the members of the Board which consists of all European supervisory authorities as well as the European Data Protection Supervisor.
6. October 2017
On October 3rd 2017, the Irish High Court publicised it will refer the Facebook case to the Court of Justice of the European Union (CJEU). The lawsuit is based on a complaint to the Irish Data Protection Commissioner filed by Max Schrems, an Austrian lawyer and privacy activist. Schrems was also involved in the case against Facebook resulting in the CJEU’s landmark decision declaring the Commission’s US Safe Harbour Decision invalid.
In his new complaint, Schrems is challenging the data transfers of Faceook to the US on the basis of the “Model Contracts for the transfer of personal data to third countries”, also known as standard contractual clauses (SCCs). Schrems himself said, “In simple terms, US law requires Facebook to help the NSA with mass surveillance and EU law prohibits just that.”
In contrast to Schrems, the Irish Data Protection Commissioner challenged the validity of the SCCs in general and not only in matters of Facebook. Due to the importance of the case, the Irish High Court referred it to the CJEU. The CJEU will now have to decide whether data transfers to the US are valid on the basis of the Commission’s Model Contracts. It remains to be seen what the CJEU will decide and if its decision will have an impact on the Privacy Shield framework.
