The
action will begin in the High Court but is likely to be heard in
the European Court of Justice, said the chairman of DRI, barrister
TJ McIntyre. The suit argues that the Irish law breaches that
country's Constitution and that the EU Directive contravenes the
European Convention on Human Rights.
"It's a challenge to both Irish law and the EU Directive," said
McIntyre. "We're challenging the domestic law on national
constitutional grounds and the EU Directive and we're hoping for a
preliminary reference to Luxembourg to assess the validity of the
Directive."
The Data Retention Directive was passed this year and requests
that member states pass laws which mandate telecoms firms to retain
data on customers' use for up to two years. Ireland's law on data
retention was passed in 2005.
"The Irish Constitution has an unenumerated right to privacy
which has been read into it by the courts," said McIntyre. "The
Irish courts have been very strong on saying that any limitation on
privacy must be reasonable, must be justified and clearly that's
not the case with data retention."
DRI will ask the High Court in Ireland to refer the Directive to
the ECJ for a decision on its validity. The action names as
defendants the Minister for Communications, Marine and Natural
Resources, the Attorney General, the Minister for Justice, Equality
and Law Reform and the Garda [police] Commissioner.
DRI hopes that its action will have a knock on effect on data
retention legislation across Europe. "If we're successful it will
strike down the Data Retention Directive and that will invalidate a
lot of the data retention laws across Europe," said McIntyre.
"We're hoping that there will be a knock on effect. A ruling on the
human rights case would be very persuasive for national
courts."
Ironically, Ireland was one of two countries which opposed the
Directive on procedural grounds. The Irish Government had wanted
more stringent measures and was unhappy that the procedure used to
pass the Directive meant that it had no veto in what it regarded as
a security matter, as is usual.
McIntyre said that he agreed with the Government on the
procedural basis of the Directive as well as objecting to it on the
grounds of its content. He said that he will find himself on the
same side as the government he is taking to court on those
procedural grounds. McIntyre said that the action is being funded
through donations.
