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Czech Republic: Constitutional Court Overturns Parts of Data Retention Law

(Apr. 1, 2011) The Constitutional Court of the Czech Republic, on March 31, 2011, overturned certain provisions of the Electronic Communications Act. (Czech Constitutional Court Rejects Data Retention Law, European Digital Rights (EDRI) website (Mar. 31, 2011).) The Court found unconstitutional paragraphs 3 and 4 of section 97 of the Act, which had stipulated that telecommunications companies had to maintain records of customer Internet and telephone usage (including phone calls, faxes, text messages, Internet activity, and emails) for up to 12 months. (Sarah Paulsworth, Czech Constitutional Court Overturns Parts of Data Retention Law, PAPER CHASE NEWSBURST (Mar. 31, 2011); Press Release, Constitutional Court of the Czech Republic, Ústavní Soud Zrušil Část Zákona o Elektronických Komunikacích [Constitutional Court Struck Down Part of the Electronic Communications Act] [in Czech, with link to the decision] (Mar. 31, 2011); Electronic Communications Act, No. 127/2005 (in force on May 1, 2005, as last amended by Law No. 153/2010) [in English], Ministry of Industry and Trade of the Czech Republic website.)

The Act is based on the EU Directive 2006/24/EC on the retention of data generated or processed in connection with the provision of public electronic communications services or public communications networks, which requires the EU Member States to gather telecommunications data in an effort to combat serious crime, in particular terrorism and organized crime. (Directive 2006/24/EC, OFFICIAL JOURNAL OF THE EUROPEAN UNION L 105/54 (Apr. 13, 2006).) The judicial challenge to the Act was not in connection with the actual content of retained data “but rather the information showing when and with whom people were communicating.” (Paulsworth, supra.)

The complaint against the Law was lodged by the Czech privacy-protection activist group Iuridicum Remedium (IuRe) and 51 members of the Czech Parliament. According to the Court, ambiguously defined data retention rules result in measures applied for requesting and using retained data “being overused by authorities engaged in criminal proceedings for purposes related to investigation of common, i.e.[,] less serious crimes.” (EDRI, supra.) Moreover, stated Petr Kučera of IuRE, “[t]he Constitutional Court also regards e.g. certain provisions of the Criminal Act concerning the use of such data by authorities engaged in criminal proceeding as highly questionable and it called on MPs to consider its modification.” (Id.)

The Court further opined that it will be necessary to consider one by one, “with respect to the principle of proportionality regarding privacy rights infringement,” each case in which data have already been requested for use in criminal proceedings. Another IuRE legal expert, Jan Vobo"5;il, added that the decision “also implies that electronic communication providers are no longer obliged by any law to retain such data for the use of entitled authorities – as was previously the case according to the repealed provisions; the respective databases should be deleted … .” (Id.) In his view, the ruling “is of great importance not only with respect to the Czech Republic but to the European Union as a whole, since there is currently an evaluation process under way assessing the impact and constitutionality of the Data Retention Directive … .” (Id.)

It may be noted that in 2010 the German Federal Constitutional Court, citing privacy issues, overturned a law requiring telecom providers to store information on telephone, e-mail, and Internet use for six months, for utilization in possible investigations related to terrorism. (Paulsworth, supra.)