SC: Retention of e-communication data in the Czech Republic violates EU law, change is up to politicians
Brno – According to the Supreme Court (NS), the Czech legal regulation of blanket retention of electronic communication data has been for a long time and in an especially serious way violating European Union law. However, the law remains in force, as the NS does not have the authority to annul laws. Any possible change depends on politicians. The Ministry of Industry and Trade (MPO) is now familiarizing itself with the judgment and will then determine the next steps. Operators must for now follow the current regulation, said the president of the Association of Mobile Network Operators Jiří Grund to ČTK.
The dispute concerns the obligation of operators to retain data from which it is possible to infer who communicated with whom and from where. The content of messages is not retained on a blanket basis. The judgment is temporarily available on the official notice board. According to it, the NS dismissed the MPO’s appeal on a point of law; under the final judgment, the ministry must apologize to journalist Jan Cibulka for the interference with his rights to privacy and personal data protection. Cibulka filed a lawsuit against the Czech state with the help of lawyers from the association Iuridicum Remedium (IuRe) in 2021.
The disputed paragraph specifically states that operators of communication networks must retain traffic and location data for half a year. According to the court, the legal regulation does not meet the requirements of EU legislation and the Court of Justice of the EU. The NS also reiterated its earlier conclusion that the state bears responsibility for both pecuniary and non-pecuniary damage caused by incorrect implementation of EU directives.
“If the court is now saying that the current law violates EU law, it is primarily a signal for the ministry and lawmakers to change the legal regulation. However, until it is changed, we must follow the current law,” Grund said. He pointed out that last year the Ministry of the Interior wanted to further extend the obligation to store data.
The Constitutional Court has repeatedly dealt with the retention of traffic and location data in the past. It annulled the regulation twice. Most recently, in 2019, however, the constitutional judges rejected a proposal to annul it. The NS has now pointed out that in the meantime the Court of Justice of the EU has issued several key judgments that have tightened the view on blanket data retention. The constitutional judges therefore assessed a different legal situation at the time, and moreover they mainly examined compliance with the Czech constitution, while the NS focused on the European context.
A new proposal for annulment would, if applicable, have to be submitted to the Constitutional Court by an authorized petitioner, for example a group of deputies or senators. (8 January)
