The storage of personal data by telecommunications companies does not violate the right to privacy

JUDGMENT

Breyer v. Germany 30.01.2020  (no. 50001/12)

see here 

SUMMARY

The case concerned the storage of pre-paid SIM card users’ data by telecommunications companies.

The Court found in particular that collecting the applicants’ names and addresses as users of
pre-paid SIM cards had amounted to a limited interference with their rights. The law in question had
additional safeguards while people could also turn to independent data supervision bodies to review
authorities’ data requests and seek legal redress if necessary.

Germany had not overstepped the limits of its discretion (“margin of appreciation”) in applying the
law concerned and there had been no violation of the applicants’ rights by the collection of the data

PROVISION

Article 8

PRINCIPAL FACTS

The applicants, Patrick Breyer and Jonas Breyer, are German nationals who were born in 1977 and
1982 respectively and live in Wald-Michelbach (Germany).

In accordance with 2004 amendments to the Telecommunications Act companies had to collect and
store the personal details of all their customers, including users of pre-paid SIM cards, which had not
previously been required. The applicants, civil liberties activists and critics of State surveillance, were
users of such cards and therefore had to register their personal details, such as their telephone
numbers, date of birth, and their name and address, with their service providers.

In 2005 they lodged a constitutional complaint against various sections of the Act, including sections
111, 112 and 113. These provisions, as far as relevant in the present case, covered respectively the
obligation to collect the data and for the authorities to access it, both automatically and on demand.
On 24 January 2012 the Federal Constitutional Court found that the provisions in question were
compatible with the Basic Law as being proportionate and justified.

THE DECISION OF THE COURT…

Article 8

The Court considered that the interference complained of was related to the storage of their
personal subscriber data (telephone number, name and address, date of birth and date of contract)
and the possibility for national authorities to access that data in certain defined circumstances and
therefore examined the applicants’ complaints under Article 8 alone.

It reiterated its case-law that protecting such data was of fundamental importance to allow people
to enjoy their right to respect for private and family life, necessitating sufficient legal safeguards to
prevent the use of data in a way which went against the guarantees of Article 8.

Governments had some leeway (“margin of appreciation”) when pursuing the legitimate aim of
protecting national security. Where there was no consensus within Council of Europe States on a
particular interest or how best to protect it, then the margin of appreciation would be greater.
Existence and nature of interference

The applicants argued that the measure in question was a serious interference with their rights.
Companies had to collect the data on all users, most of whom were innocent of any offence.
The Government conceded that section 111 had interfered with the applicants’ right to privacy.
However, the interference had been limited, had pursued legitimate aims, had limited the data to
what was necessary for identification, had had a clearly defined and limited storage period, and had
had sufficient safeguards against abuse.

The Court accepted that there had been an interference with the applicants’ rights and examined
whether it had been in line with Convention requirements of being in accordance with the law,
pursuing a legitimate aim, and necessary in a democratic society.

Meeting Convention requirements for interference

On the first point, it found that the legal provisions were clear and foreseeable. Furthermore, the
interference had pursued the legitimate aims of public safety, the prevention of disorder or crime
and the protection of others’ rights.

As to necessity, it first accepted that investigative tools had to adapt to modern means of
communication when it came to fighting challenges such as organised crime and terrorism. Given
the certain margin of appreciation for Member States in such circumstances, it found that the
obligation to store the data was in general a suitable response to changes in communications
behaviour and in the means of telecommunications.

The Court then dealt with the question of whether the interference had been proportionate and had
struck a fair balance between the competing public and private interests at stake.

The Court first addressed the level of interference with the applicants’ right to private life. It agreed
with findings by the Federal Constitutional Court that only a limited set of data had been stored as it
did not include highly personal information and communications traffic and that the level of
interference in this case had to be clearly distinguished from the Court’s previous cases.

It also had regard to the case-law of the Court of Justice of the European Union (CJEU) on which the
applicants had relied (Digital Rights Ireland and Seitlinger and Others) and found that the data at
issue in the present case bore greater resemblance to that at issue in Ministerio Fiscal, which had
concerned police requests to access data, such as names and addresses, to identify the owners of
SIM cards activated with stolen mobile telephones, where the CJEU had concluded that the access to
the data could not be defined as a serious interference with the fundamental rights of the persons
concerned..

The Court concluded that the interference in the present case was of a rather limited nature, albeit
not trivial. It furthermore found the storage period to be not inappropriate, while the information
held appeared to be limited to that necessary to identify subscribers.

Access to the data

The Court assessed the proportionality of the interference by the provisions on access to the data.
The Government argued that sections 112 and 113 in conjunction with other specific provisions for
data retrieval limited access to and use of the data and constituted effective safeguards against
abuse. The applicants held that the possibilities of subsequent use of their personal data by the
authorities had to be taken into account.

The Court observed that the automated procedure under section 112 had very much simplified data
retrieval but held that the fact that the authorities which could request access were specifically
listed in section 112 and were all concerned with law enforcement or the protection of national
security constituted a limiting factor. Furthermore, section 113, on the procedure for written
requests for data, did not provide the precise names of bodies but gave their functions, which the
Court considered was clear enough to foresee which bodies could ask for information. Both
provisions provided further additional safeguards against abusive demands.

The Court lastly considered the available possibilities of review and supervision of information
requests under both sections and concluded that they also provided for independent supervision by
Federal and Land data protection authorities. In addition, the Federal Constitutional Court had ruled
that legal redress against information retrieval could be sought under general rules.

Conclusions

Overall, Germany had not overstepped the certain margin of appreciation it had when choosing the
means to achieve the legitimate aims of protecting national security and fighting crime.
The Court concluded that the storage of the applicants’ personal data had been proportionate and
“necessary in a democratic society”. There had thus been no violation of the Convention.

Separate opinion

Judge Ranzoni expressed a dissenting opinion, which is annexed to the judgment

 


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