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Sweden: Internet Service Provider Appeals Data Retention Obligation

(Nov. 7, 2014) On October 13, 2014, the Administrative District Court in Stockholm issued a ruling against telecommunications provider Tele2 Sverige AB, declaring that it must continue to collect and store data from its users as specified in the Swedish Data Retention Act. (Administrative District Court Stockholm, Case No. 14891-14 [in Swedish] (Oct. 13, 2014).) The decision comes after Tele2 Sverige AB appealed an injunction from the Swedish Post and Telecom Authority (PTS) requiring Tele2 Sverige AB to continue the data collection despite the invalidation by the Court of Justice of the European Union of the European Data Retention Directive in April of 2014. (Press Release, Judgment in Joined Cases C-293/12 and C-594/12 Digital Rights Ireland and Seitlinger and Others (Apr. 8, 2014), COURT OF JUSTICE OF THE EUROPEAN UNION; Elin Hofverberg, Sweden: Data Retention No Longer Required of Telecom Companies, GLOBAL LEGAL MONITOR (Apr. 24, 2014).)

The Administrative District Court declared in its ruling that the Swedish legislation conforms to the Swedish Constitution, EU law, and also the European Convention on Human Rights. The Court stated that the Swedish rules on data retention are less far-reaching than those of the European Data Retention Directive and that privacy is better protected when a shorter data retention period and more precise instances when the data may be accessed are prescribed. (Administrative District Court Stockholm, Case No. 14891-14, supra.)

According to news reports, Tele2 Sverige AB has decided to appeal the decision in hopes of obtaining a preliminary ruling from the European Court of Justice on whether or not the Swedish data retention legislation is legal. (Tomas Zirn, Tele2 överklgagar datalagring, COMPUTER SWEDEN (Oct. 29, 2014).)

Pending a verdict from the Administrative Appellate Court, data retention by telecom service providers continues to be mandated by the Swedish Data Retention Act, and failure to retain data may result in an injunction from PTS backed by a fine. Thus, on October 27, 2014, PTS issued an injunction under which the Internet service provider Bahnhof must resume retention of data, which it had suspended in April following the EU Court of Justice invalidation of the Data Retention Directive. The injunction decree was backed by an SEK5 million (about US$670,000) fine against the company. Bahnhof has responded that it maintains that the retention of data is illegal following the Court of Justice decision. (Föreläggande om efterlevnad av skyldighet att lagra trafikuppgifter m.m. för brottsbekämpande ändamål, Reference No. 14-8147, PTS (Oct. 27, 2014).)