Privacy Law

German Ministry of Justice plans draft bill on data retention

Germany’s Ministry of Justice has announced plans to develop a draft bill on data retention. The Government, however, will await judgment from the European Court of Justice on the topic before introducing a formal bill.

German Ministry of Justice plans draft bill on data retention © ferkelraggae-Fotolia

German Ministry of Justice plans draft bill on data retention © ferkelraggae-Fotolia

Data retention

According to several media reports, Germany’s Federal Minister of Justice, Heiko Maas, has agreed with Federal Interior Minister, Thomas de Maizière, that work should soon begin on a draft bill on data retention.

It is said that the government intends to await judgment from the European Court of Justice on the topic before adopting the draft bill.

The ECJ is currently assessing whether the European Union’s current Data Retention Directive infringes the EU’s Charter of Fundamental Rights.

Doubt about legality

The announcement to begin preparing a draft bill comes amidst controversy concerning the EU’s data retention directive and doubts about its legality.

The directive came into effect in 2006. It requires telecommunication providers to save connection data from e-mails, SMS, MMS and telephone conversations for at least 6 months. The retained data can then be used to fight crime.

The directive also permits the recording of citizens’ electronic data even where there are no grounds for suspicion and citizens’ connection data may be retained for up to two years.

Complaints were brought by privacy advocates in Ireland and Austria. They argue that such power infringes citizens’ right to privacy and also express concern about the potential for abuse of retained data. They accuse the EU of having insufficiently assessed the consequences of the directive’s provisions.

Lawyer for the claimants also expressed concern that the retained data could be used to create personality profiles.

In an opinion, the ECJ’s advocate general expressed doubt that the directive is compatible with fundamental rights. He declared the directive to be ill-defined and disproportional. While data retention in itself is not incompatible with fundamental rights, the advocate general came to the conclusion that the directive, in its current form, is incompatible with fundamental rights.

In the so-called preliminary judgment procedure, the ECJ will now need to clarify whether the EU directive is compatible with the Charter of Fundamental Rights (case ref. C-293/12).

If the ECJ gives the green light, it is probably that the Federal Minister Maas will push for the draft bill to proceed to more formal legislative stages.

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Kilian Kost joined WILDE BEUGER SOLMECKE as a lawyer in 2009. He specialises in internet law and competition law. In 2013 he became an accredited intellectual property lawyer.

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