Irish Government challenges Data Retention Directive – but ignores privacy rights

The Irish Government yesterday started a challenge to the Data Retention Directive before the European Court of Justice. (The challenge was long promised but was filed only yesterday.) What does this mean for us?

On the plus side, the challenge will certainly delay implementation of the Directive, and stands a very good chance of striking it down in its entirety. There is a very strong case that the passing of the Directive was flawed.

On the minus side, the challenge is purely procedural. The Government agrees with the principle of spying on every citizen – it merely alleges that the wrong legal mechanism was chosen. According to the Government, the measure should have been passed by unanimous agreement of all the member states – not by a majority voting procedure. We agree – the directive is clearly an attempt to deal with matters of criminal law that are reserved to the member states, and the fundamental rights of Irish citizens should not be set aside by the majority vote of other EU states. But we’re disappointed that the Government shows no interest in asserting the right to privacy of Irish citizens. The result is that the European Court of Justice, when it eventually deals with the case, will only be hearing about procedure – not privacy. We believe that a law which provides for state-sponsored spying on every citizen, at all times, must be judged on privacy grounds – and that when it is it will be found to violate fundamental rights.