Legal Action Against Retention
Long-term recording of telecommunications data of everyone, without concrete suspicion, violates the fundamental right to privacy. So ruled the European Court of Justice, which on April 8, 2014, declared the European Data Retention Directive (2006/24/EC) invalid in its entirety and with retroactive effect.
In the Netherlands, regulations in this area, based on the Data Retention Directive, are laid down in the Telecommunications Retention Obligation Act. The Council of State advised the government back in July 2014 that the law would violate fundamental rights. However, the Dutch government ignored the State Council’s advice and refused to disapply the law. The government was working on new legislation, but in the meantime wanted to continue to enforce the Telecommunications Retention Act.
PILP participated in a broad coalition that sought to force a suspension of the law’s implementation. Internet service provider BIT, the Dutch Association of Journalists, the Dutch Association of Criminal Law Attorneys, Privacy First and several companies directly affected by the data retention law, among others, are further part of this coalition. Lawyers Fulco Blokhuis and Otto Volgenant of Boekx Lawyers, also on behalf of PILP, sent a letter to the government on December 8, 2014, requesting consultations.
Since this did not lead to the desired result, summary proceedings were still initiated, in which PILP was a co-plaintiff. The summary proceedings took place on February 18, 2015 at the District Court of The Hague. You can read the official summons and pleading notes. The mandatory retention coalition used internet consultation in this case. PILP provided arguments from the ECHR for the proceedings and contributed to the litigation strategy.
PILP joined this coalition because the right to privacy is a great good that has come under great pressure in recent years, and because once restricted, rights and freedoms are difficult to reverse. The government has the primary responsibility to protect these rights, and should allow advice from authorities such as the Council of State and rulings from European human rights bodies such as the European Court of Justice to weigh heavily in its decisions. This Court has unequivocally established that there are fundamental problems in the European directive underlying the Dutch Law. At that point, the government should have suspended the Act, or at least its enforcement. See also the arguments on Privacy First’s website about this case, which we share with them.
On Wednesday, March 11, 2015, a judgment was rendered in this case and the preliminary injunction judge declared the Telecommunications Data Retention Act inoperative. The Ministry of Security and Justice has subsequently announced that it will include the contents of the March 11, 2015 ruling in the bill providing for amendments to the Data Retention Act. The case is thus closed, but we remain active in the field of privacy.
