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back to article European Court of Justice rips up Data Retention Directive

A European Union directive that required ISPs to retain data for two years has been deemed "invalid", Brussels' highest court ruled today. The measure "entails a wide-ranging and particularly serious interference with the fundamental rights to respect for private life and to the protection of personal data, without that …

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Pint

Good!

Good to hear the European Court make such a sensible decision

I'll raise a glass to that

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Re: Good!

"I'll raise a glass to that"

I'd suggest holding that glass for a moment. How likely is it that (in particular but no limited to) the UK government will wind the clock back, and return to the inconvenient days of needing warrants and such like?

More likely is that they'll invent some work around where they stream the data out of the ISP's in real time, and warehouse it all centrally (probably much as they do at the moment). And the Data Retention Directive most certainly won't apply to GCHQ.

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Re: Good!

Hard to say. They voted heavily against it as a purely domestic measure, which is why Brown took it to Europe to force it through in the first place. Whether they will remember this ... no, probably not.

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Anonymous Coward

Re: Good!

"I'll raise a glass to that"

I'd suggest holding that glass for a moment. How likely is it that (in particular but no limited to) the UK government will wind the clock back, and return to the inconvenient days of needing warrants and such like?

Well, OK, but for the UK to play nice with the EU requires it to also play nice with its legal framework. This decision means that a UK citizen has a point of escalation for anything the UK cooks up that is in conflict with EU law.

I see a trend here: I suspect that, especially post Snowden, the EU commission has realised it has for the first time in history actually some political leverage over the US that may keep the usual blackmail a bit at bay. Hence a sharper focus on the positive side of privacy. Not sure it will last, but it sure is fascinating to follow.

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Anonymous Coward

Re: Good!

Well, OK, but for the UK to play nice with the EU requires it to also play nice with its legal framework. This decision means that a UK citizen has a point of escalation for anything the UK cooks up that is in conflict with EU law.

As if UK cares. Just look what happened for example with importing cigarettes for personal use via Dover where Customs and Excise ignored EU and confiscated and crushed vehicles used as they deemed the, what was all accounts legal import, as smuggling.

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Pint

Re: Good!

Well the court clearly said that the directive violates Euro Human Rights law, so anything put in place under the directive would also be presumed to be a violation of that law unless the Euro courts say otherwise (not likely in my opinion.

Of course someone is still going to have to take UK Gov to court to force them to obey.

Glass raising as well.

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Re: Good!

But European law allows individual countries to say what constitutes "personal use". Customs & Excise simply put a threshold figure on what you can import based on what a person is reasonably likely to smoke in a year; try to import significantly more than that and they (reasonably) get suspicious that you are planning to sell them. They are flexible however; prove that you are a heavy smoker and then adjust the threshold accordingly.

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Stop

Re: Good!

"As if UK cares. Just look what happened for example with importing cigarettes for personal use via Dover where Customs and Excise ignored EU and confiscated and crushed vehicles used as they deemed the, what was all accounts legal import, as smuggling."

Actually all EU law is enforceable in every court in Britain, and even conflicting UK law is automatically disapplied by the British judge: it doesn't matter if the UK cares, because it simply complies. Have a look at the European Communities Act 1972 s 2(1) http://www.legislation.gov.uk/ukpga/1972/68/section/2 Those vehicles were crushed because the imports were found to be illegal. Free movement of goods is a qualified, not an absolute right. The qualifications arises from the Article 36 derogations to Article 34 TFEU (http://euwiki.org/TFEU#Article_34) as well as the judicially created derogations.

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Re: Good!

"Well the court clearly said that the directive violates Euro Human Rights law"

OK the Court of Justice of the European Union is not any kind of authority on human rights law - that role is for the ECtHR in Strasbourg which is an entirely unrelated entity to the EU. The CJEU ruling does not bear upon the UK's Human Rights Act s 6(1) or s 19 obligations (to comply with ECtHR rulings) or its general ECHR obligations. I think it's entirely possible the Strasbourg Court would take a different view. The CJEU is under all sorts of massive political pressure because of the incredible unpopularity of the EU as an entity within some electorates. The ECtHR is under no such pressure and can take a much longer view in theory.

"Of course someone is still going to have to take UK Gov to court to force them to obey."

The European Commission will do that if it's an important enough case, however, even Joe Bloggs can do that in his local county court afaik, thanks to s 2(1) of the ECA 1972

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Re: Good!

Not human rights from the European Convention on Human Rights, but fundamental rights and freedoms from the EU charter.

One's from the Council of Europe (not the EU) and is all that Human Rights stuff you're always reading about in the tabloids (hilariously, Russia is a signatory to the ECHR- some of the cases that get to Strasbourg from there are incredible).

The other is a similar charter that the EU has put together which contains all the ECHR rights but also some special rights of its own, which are a bit more up to date (while the ECHR is a post war creation the charter is from 2000). One of these rights is the right to data protection (really, Article 8 isn't a general privacy right, it's right to personal data protection). There's also a right to education and a right to science (this one is far more interesting when it's not explained).

</boring>

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Anonymous Coward

Re: Good!

> How likely is it that (in particular but no limited to) the UK government will wind the clock back

I do not know and I do not care, as I'm fortunate enough to live in one of the sane countries that steadfastly refused to ever implement this directive.

Prize goes to the Czechs though, for inventiveness in getting around the rules: they first approved a law transposing the said directive (thus avoiding EU fines), and as soon as they did that, the very same lawmakers interposed a legal challenge against their very own law in Czech constitutional court--which duly struck it down as being pretty fucking wide off the mark from the strict, constitutionally guaranteed privacy rights that many ex-Eastern bloc countries afford their citizens, having learned--and not yet forgotten--their lessons.

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@Rikkeh Re: Good!

Spot on except for a little warning which needs tagging on to your good history lesson.

The Charter rights - I'm not sure if they can found a cause of action on their own - but even if they can, they are only invocable when one of the EU institutions or Member States is applying EU law, and *weighed*, at that, in a balancing exercise alongside the other objectives of the measure which are at stake. They're not absolute rights, they're all very qualified inotherwords, and invocable under limited circumstances. Which is a shame as some of them are quite good, e.g. the right to competent administration!

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Poor Nigel Farage

Having come out against mass surveillance, he must be so conflicted at this moment.

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Re: Poor Nigel Farage

The fact the EU has made a good decision, does not mean you need to be a part of the EU to have good decisions made, you just don't make bad ones yourself while in power in the UK. It is hardly a win for the EU, more a fail for the current load of politicians in power in the UK for accepting it and the previous EU politicians for drafting it in the first place!

You may have missed that it was the EU that created this problem in the first place, they are only rectifying the previous mistake now!

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Re: Poor Nigel Farage

I take it from the thumbs down, people think a good thing about the EU is that they make up a directive which is illegal and then need the ECJ to tell them that. When if they just didn't exist in the first place, none of this would have been needed? Seems like an incredible waste of both institutions time and money, which was spent negotiating a law so that another party can then find it illegal. Yea sounds all great to me!

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Anonymous Coward

Re: Poor Nigel Farage

Not really, just because he thinks we give too much power to europe does not mean he can't acknowledge they made a good decision to correct a mistake....

Personally I think we are better in the EU than out, but we need people like him as our MEP's, people who would protect the rights of Citizens, unlike the majority of our MP's who don't seem to care about the rights of citizens, when you have people with as little sense as Theresa May having so much power, it is very very scary...

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Re: Poor Nigel Farage

"You may have missed that it was the EU that created this problem in the first place, they are only rectifying the previous mistake now!"

I see so you want to ban "mistake[s]"? As long as you have mechanisms for continually refining and revising a legal order, which the EU seems to have, then it seems to me either you should take issue with the underlying legal order (the free movement of factors of production), or you should propose refinements, or you should shut up, but to just say that because there was a regulatory policy you disagree with (without even saying why) then the EU should not exist, seems to me a very a weak argument.

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Anonymous Coward

Re: Poor Nigel Farage

Why?

Even a stopped clock is right twice a day.

The fact that a court somewhere in Europe might a some point in time make a decision that he might agree with doesn't cause a conflict.

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Re: Poor Nigel Farage

Revising a mistake is one thing, not checking if a law you are introducing violates several other laws having spent ages negotiating its implementation is idiotic. What is more, the law isn't something any right minded citizen of the EU would want anyway, yet they all have to abide by it. My comment wasn't really about the law in and of itself, my reasons for that are in and around privacy and the right of the individual for the state not to interfere. My problems with the EU are entirely seperate, they are around the bureaucratic nightmare its implemented using, providing no benefit that could not be negotiated on an individual basis by the UK with countries we want to trade with.

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Re: Poor Nigel Farage

I might be naive on this, but surely Nigel Farage is a politician. Whichever way the decision went he would have made capital, either by:

claiming the the European court has bowed to pressure of his party

or

stating he will oppose whatever nefarious decision they made that he disagrees with

I have rarely heard a politician say that a bye election result was a bad thing for them even when they've lost a safe seat, so I can't see Farage being inconvenienced by any decision from the European court, which as other have pointed out is independent of the EU anyway.

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Thank you, European Court of Justice.

At least there's a body which puts some sense into eurocrats and such.

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Anonymous Coward

At Last !

The EU does something useful.

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Re: At Last !

ECJ != EU

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Re: At Last !

They created the issue in the first place! Hardly something useful, creating a problem, then fixing it. All at cost to the countries that contribute money to this nonsense.

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Re: At Last !

> The EU does something useful.

Yes yes yes, but BESIDES trying to curb Spanish overfishing, remove customs, kill roaming charges, get rid of "charger hell" on cellphones, defending net neutrality and outlawing throttling, enforce medical trial transparency, stop money laundering, make war in Europe impossible, and strike down Holland's attempt to EU-wide outlaw porn, WHAT HAS THE EU EVER DONE FOR US?

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Re: At Last !

and the wine...

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Joke

Re: At Last !

Oh wine, SHUT UP!

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Re: At Last !

Outlawed sex discrimination in employment terms and conditions including pay and pensions.

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Re: At Last !

"make war in Europe impossible" errm, what? How exactly has it done this? If anyone outside of the EU, or anyone within it for that matter wanted to have a war they could do so just as much now as they could before.

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Anonymous Coward

Re: At Last !

> Outlawed sex discrimination in employment terms and conditions including pay and pensions.

The Sex Discrimination Act 1975

The Equal Pay (Amendment) Regulations 1983

The Sex Discrimination Act 1986

The Sex Discrimination and Equal Pay (Offshore Employment) Order 1987

All pre-dated the EU (Maastricht Treaty 1993)

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@Condiment Re: At Last !

And where did those laws come from? That's right - the EU. Article 119 of the 1957 Treaty of Rome. "Each Member State shall during the first stage ensure and subsequently maintain the application of the principle that men and women should receive equal pay for equal work."

We signed up in 1972 not in 1993. From that date on, thanks to the European Communities Act 1972 s 2(1) all our courts were obliged to enforce domestically ALL Treaty provisions and CJEU rulings on non-discrimination, and hold the state itself liable where it had failed to implement directives.

http://www.legislation.gov.uk/ukpga/1972/68/section/2

http://www.hri.org/docs/Rome57/Part3Title08.html#Art119

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Anonymous Coward

Re: @Condiment At Last !

> We signed up in 1972 not in 1993

We signed up to the Economic European Community (EEC) in 1972.

We signed up to the European Union in 1993 with the Maastricht Treaty.

Perhaps I didn't go back far enough for you.

The Equal Pay Act 1970 has as the title of Section 1 "Requirement of equal treatment for men and women in same employment".

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Re: At Last ! ... and the wine

Except that the EU has all sorts of stupid laws about the production of wine within the EU. For instance it's illegal to make desert wine in the the UK.

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Re: At Last ! ... and the wine

No, it's illegal to sell it as Sherry or Port. Because Sherry is a protected trademark of wine produced in the Jerez district, and Port a protected trademark of wine produced in Douro Valley.

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Re: At Last !

> "make war in Europe impossible" errm, what? How exactly has it done this?

That's the whole point of the EU project -- the common market and NATO make it impossible for member states to go to war against each other, because their militaries and economies are intertwined. That's why EU, the bigger part of the historically most wartorn continent on the planet, hasn't had an internal conflict since 1945.

The collective can of course still go to war against non-members, as most recently Libya found out.

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Coat

Re: At Last ! ... and the wine

For instance it's illegal to make desert wine in the the UK.

It should be illegal to make wine in the UK at all.

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Re: @Condiment At Last !

the scholarly convention is to speak of the activity of the union during its entire history, as being the activity of the union, not the eec, nor the ecsc, or anything like that. which you'd know if you knew what you were talking about.

the equal pay act 1970 was barbara castle's random act of doing good, against the wishes of her prime minister who was on holiday and unreachable. it wasn't a requirement of eu law unlike all the post-1972 law.

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Hurrah

Now to go after the Credit reference Agencies who seem to think it's OK to retain your financial records for forever and a day.

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Anonymous Coward

Re: Hurrah

The Crowther Report on Consumer Credit (1971) expressed the view that a statutory time limit of six years be used. The Younger Committee on Privacy (1972) decided that as this was already the industry practise there was no immediate need for a new or amended law. The Data Protection Act 1984 determined that data only be processed for legitimate interests. This has all resulted in the ICO determining that Credit reference Agencies may use your current credit commitments plus the previous six years credit history.

This does not mean that your credit history cannot be affected for longer than six years. For example, if you were declared bankrupt in 2000 and then refused credit due to this in 2005, your record in 2010 will have the credit refusal, but not the bankruptcy.

The Consumer Credit Act 1974 gives you the right to have incorrect records amended and to add explanatory notes to the records.

It amazing how we ever managed to come up with anything that protected the consumer before joining the EEC (1973) and before the EU (1993 Maastricht Treaty).

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Re: Hurrah

That's all well and good but try telling the likes of Eperi(ence)(p)a(i)n that. They reckon, "Once a financial association has been added to your credit report it will remain there indefinitely and can only be removed if the two parties are no longer financially associated in any way or by the individual lender who has added the association to your report if you believe you never made the joint application or opened the joint account which created the association entry." So even if you query it and tell them the info is wrong, they ain't gonna do anything about it.

One association does not mean multi-associations and this is where this legislation falls down as credit reference agencies seem to like putting all eggs in one basket and insist that just because you may have a "Joint" mortgage with someone you must have financial associations even if either person has even sneezed on an application for credit. So the upshot is I get to know all my wife's dealings (even from when she wasn't my wife) and get associated with them by any bank that does a credit check until the day she dies.

Credit reference agencies are the real power in the financial markets, they need to be brought down a peg or two

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Anonymous Coward

Re: Hurrah

"Once a financial association has been added to your credit report it will remain there indefinitely and can only be removed if the two parties are no longer financially associated in any way or by the individual lender who has added the association to your report if you believe you never made the joint application or opened the joint account which created the association entry."

Note the phrase "financially associated". As long as you are financially associated they can keep the record. Once you are no longer financially associated they only keep it for six years. This means that if you took a mortgage out 20 years ago and are still repaying it or arguing about it then you are still financially associated.

If you have a joint mortgage then you do have a financial association with your wife. This association will end 6 years after the joint mortgage ends.

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Re: Hurrah

Ok we've started down this road so I may as well walk to the end of this cul-de-sac at the risk of turning this forum into a Done Get Done Get Dom or rip-off Britain tribute.

Scenario 1)

My wife takes out a loan in order to buy me a new car for my birthday. As we have a mortgage together, I get to see the details of that loan on my credit report, even though it is taken out in her own name. The loan was taken out solely in my wife's name so I have no more right to know about it then she would about me if I did the same. This isn't the 19th century when whatever assets the wife has automatically became the husbands on marriage and my wife has not given myself or teh credit reference agency permission to share it.

Scenario 2)

I have a business partner and together we buy a property portfolio with bank loans. That partner then on his own and separately from me, buys a new house(with a mortgage), a new car (on credit) and another portfolio with bank loans. I have no financial association with those other transactions but they appear on my credit report as we have the first association. I have no more right to see those non-applicable associations as the business partner would have of mine, especially as some of them may be commercially sensitive & confidential.

Why then, must all financial activity of my wife and/or business partner stay on MY credit report just because of one association to a person? Yes, the one association should show until either the mortgage is paid or one of us dies and I'm not arguing that point, (it is after all a legitimate association), but not EVERY single financial transaction for which we DO NOT have a joint financial interest. Not only is that an invasion of privacy, but also breaks all sort of boundaries morally, confidentially & quite possibly contractually.

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Anonymous Coward

Re: Hurrah

> Now to go after the Credit reference Agencies who seem to think it's OK to retain your financial records for forever and a day.

In my last country of residence, it actually was OK for them to do that.

As long as said data was not stored electronically. As I helpfully pointed out to them. :-)

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Anonymous Coward

Re: Hurrah

In both scenarios you have a joint loan. If either your wife or your business partner get themselves seriously into debt it will affect their ability to pay their share of the joint loan. This will in turn have an impact on you since you will either have to cover their share out of your earnings or partially/fully default.

It is only the association that is in your credit report. You do not get to see other loans or agreements your wife or business partner have entered into. If one of the Credit Reference Agencies has passed on this information to you then they have breached the Data Protection Act and you should report it to the Information Commissioners Office and/or the Financial Ombudsman Service.

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Re: Hurrah

> In my last country of residence, it actually was OK for them to do that.

Sweden? Sweden has no regulations at all on what information you may store, UNLESS you store it electronically, then it gets extremely restrictive instead (e.g. an electronic list of names & telephone numbers requires a federal permit).

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"Not required to" != "Prohibited from..."

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And further

!= "now remove all previously garnered details".

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Exactly

Just because a particular Directive has been invalidated, that doesn't also automatically invalidate the individual countries' laws that implement that Directive. Here's how it works:

1) European Union issues a Directive

2) Each individual EU country enacts a law to implement the Directive in some half-assed way, except for the UK, which implements every tiny bit of the Directive in obsessive detail and adds even more to it just for good measure

3) Each EU country then procedes to largely ignore that law, except for the UK, which scrupulously enforces every single last jot and tittle of it

If then the Directive is invalidated on human rights grounds then each individual country may or may not decide to repeal their own law that implemented the directive, except for the UK, which carries on regardless. If a country decides not to repeal the law then persons from that country could mount a challenge to the European Court of Human Rights, but that's a long and expensive journey.

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Thumb Up

Written in the UK and finally in the dustbin of history.

Incidentally it was (supposedly) cooked up after the Madrid train bombings, yet the Spanish did not want it.

Cautious thumbs up for this. It's a start.

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