Posts Tagged ‘European Court’

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The European Court of Justice has passed judgement on several linked cases in Europe requiring that ISP retain extensive records of all phone and internet communications. This includes a challenge by Labour’s Tom Watson. The court wrote in a press release:

european court of justice logoThe Members States may not impose a general obligation to retain data on providers of electronic communications services

EU law precludes a general and indiscriminate retention of traffic data and location data, but it is open to Members States to make provision, as a preventive measure, for targeted retention of that data solely for the purpose of fighting serious crime, provided that such retention is, with respect to the categories of data to be retained, the means of communication affected, the persons concerned and the chosen duration of retention, limited to what is strictly necessary. Access of the national authorities to the retained data must be subject to conditions, including prior review by an independent authority and the data being retained within the EU.

In today’s judgment, the Court’s answer is that EU law precludes national legislation that prescribes general and indiscriminate retention of data.

The Court confirms first that the national measures at issue fall within the scope of the directive. The protection of the confidentiality of electronic communications and related traffic data guaranteed by the directive, applies to the measures taken by all persons other than users, whether by private persons or bodies, or by State bodies.

Next, the Court finds that while that directive enables Member States to restrict the scope of the obligation to ensure the confidentiality of communications and related traffic data, it cannot justify the exception to that obligation, and in particular to the prohibition on storage of data laid down by that directive, becoming the rule.

Further, the Court states that, in accordance with its settled case-law, the protection of the fundamental right to respect for private life requires that derogations from the protection of personal data should apply only in so far as is strictly necessary. The Court applies that case-law to the rules governing the retention of data and those governing access to the retained data.

The Court states that, with respect to retention, the retained data, taken as a whole, is liable to allow very precise conclusions to be drawn concerning the private lives of the persons whose data has been retained.

The interference by national legislation that provides for the retention of traffic data and location data with that right must therefore be considered to be particularly serious. The fact that the data is retained without the users of electronic communications services being informed of the fact is likely to cause the persons concerned to feel that their private lives are the subject of constant surveillance. Consequently, only the objective of fighting serious crime is capable of justifying such interference.

The Court states that legislation prescribing a general and indiscriminate retention of data does not require there to be any relationship between the data which must be retained and a threat to public security and is not restricted to, inter alia, providing for retention of data pertaining to a particular time period and/or geographical area and/or a group of persons likely to be involved in a serious crime. Such national legislation therefore exceeds the limits of what is strictly necessary and cannot be considered to be justified within a democratic society, as required by the directive, read in the light of the Charter.

The Court makes clear however that the directive does not preclude national legislation from imposing a targeted retention of data for the purpose of fighting serious crime, provided that such retention of data is, with respect to the categories of data to be retained, the means of communication affected, the persons concerned and the retention period adopted, limited to what is strictly necessary. The Court states that any national legislation to that effect must be clear and precise and must provide for sufficient guarantees of the protection of data against risks of misuse. The legislation must indicate in what circumstances and under which conditions a data retention measure may, as a preventive measure, be adopted, thereby ensuring that the scope of that measure is, in practice, actually limited to what is strictly necessary. In particular, such legislation must be based on objective evidence which makes it possible to identify the persons whose data is likely to reveal a link with serious criminal offences, to contribute to fighting serious crime or to preventing a serious risk to public security.

As regards the access of the competent national authorities to the retained data, the Court confirms that the national legislation concerned cannot be limited to requiring that access should be for one of the objectives referred to in the directive, even if that objective is to fight serious crime, but must also lay down the substantive and procedural conditions governing the access of the competent national authorities to the retained data. That legislation must be based on objective criteria in order to define the circumstances and conditions under which the competent national authorities are to be granted access to the data. Access can, as a general rule, be granted, in relation to the objective of fighting crime, only to the data of individuals suspected of planning, committing or having committed a serious crime or of being implicated in one way or another in such a crime. However, in particular situations, where for example vital national security, defence or public security interests are threatened by terrorist activities, access to the data of other persons might also be granted where there is objective evidence from which it can be inferred that that data might, in a specific case, make an effective contribution to combating such activities.

Further, the Court considers that it is essential that access to retained data should, except in cases of urgency, be subject to prior review carried out by either a court or an independent body. In addition, the competent national authorities to whom access to retained data has been granted must notify the persons concerned of that fact.

Given the quantity of retained data, the sensitivity of that data and the risk of unlawful access to it, the national legislation must make provision for that data to be retained within the EU and for the irreversible destruction of the data at the end of the retention period.

The view of the authorities

david andersonDavid Anderson, the Independent Reviewer of Terrorism Legislation gives a lucid response outlining the government’s case for mass surveillance. However the official justification is easily summarised as it clearly assists in the detection of serious crime. He simply does not mention that the government having justified grabbing the data on grounds of serious crime detection, will share it willy nilly with all sorts of government departments for their own convenience, way beyond the reasons set out in the official justification.

And when the authorities talk about their fight against ‘serious’ crime, recent governments have been updating legislation to redefine practically all crimes as ‘serious’ crimes. Eg possessing a single spliff may in practice be a trivial crime, but the law on possession has a high maximum sentence that qualifies it as a ‘serious’ crime. It does not become trivial until it goes to court and the a trivia punishment has been handed down. So using mass snooping data would be easily justified to track down trivial drug users.

See  article from terrorismlegislationreviewer.independent.gov.uk

The Open Rights Group comments

See  article from openrightsgroup.org

open rights group 2016 logoThe judgment relates to a case brought by Deputy Leader of the Labour Party, Tom Watson MP, over intrusive data retention powers. The ruling says that:

  • – Blanket data retention is not permissible
  • – Access to data must be authorised by an independent body
  • – Only data belonging to people who are suspected of serious crimes can be accessed
  • – Individuals need to be notified if their data is accessed.

At present, none of these conditions are met by UK law.

Open Rights Group intervened in the case together with Privacy International, arguing that the Data Retention and Investigatory Powers Act (DRIPA), rushed through parliament in 2014, was incompatible with EU law. While the Judgment will no longer affect DRIPA, which expires at the end of 2016, it has major implications for the Investigatory Powers Act.

Executive Director Jim Killock said:

The CJEU has sent a clear message to the UK Government: blanket surveillance of our communications is intrusive and unacceptable in a democracy.

The Government knew this judgment was coming but Theresa May was determined to push through her snoopers’ charter regardless. The Government must act quickly to re-write the IPA or be prepared to go to court again.

Data retention powers in the Investigatory Powers Act will come into effect on 30 Dec 2016. These mean that ISPs and mobile phone providers can be obliged to keep data about our communications, including a record of the websites we visit and the apps we use. This data can be accessed by the police but also a wide range of organisations like the Food Standards Agency, the Health and Safety Executive and the Department of Health.

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European Court of Justice The European Court of Justice has heard a crucial case that will give more clarity on the infringing nature of unauthorized streaming. Dutch anti-piracy group BREIN and the Spanish authorities argued that offering or watching pirate streams is a violation of the EU Copyright Directive. However, the European Commission believes that consumers who watch unauthorized streams are not breaking the law.

Unlike traditional forms of downloading, however, in many countries the legality of viewing unauthorized streams remains unclear. In the European Union this may change in the near future. This week the European Court of Justice held a hearing during which it reviewed several questions related to pirate streaming.

The questions were raised in a case between Dutch anti-piracy group BREIN and the Filmspeler.nl store, which sells piracy configured media players. While these devices don’t host any infringing content, they ship with add-ons that make it very easy to watch infringing content.

The Dutch District Court previously referred the case to the EU Court of Justice, where several questions were discussed in a hearing this week. In addition to BREIN and Filmspeler, the European commission and Spain weighed in on the issue as well.

The first main question that the Court will try to answer is rather specific. It asks whether selling pre-programmed media-players with links to pirate sources, through add-ons for example, are permitted.

Not surprisingly, Filmspeler.nl believes that it should be allowed. They argued that there is no communication to the public or a crucial intervention from their side, since these pirate add-ons are already publicly available.

The European Commission doesn’t classify selling pre-loaded boxes as infringing either, and notes that rightholders have other options to go after intermediaries, such as blocking requests.

BREIN , which covered the hearing in detail , countered this argument noting that Filmspeler willingly provides access to illegal content for profit. Spain sided with BREIN and argued that willingly including pirate plugins should not be allowed.

The second question is more crucial for the general public as it asks whether it is illegal for consumers to stream pirated content from websites or services.

Is it lawful under EU law to temporarily reproduce content through streaming if the content originates from a third-party website where it’s made available without permission?

Spain argued that streaming pirated content should not be allowed in any way. BREIN agreed with this position and argued that streaming should be on par with unauthorized downloading since a temporary copy of the infringing file is made, which is illegal under EU case law.

Interestingly, the European Commission doesn’t believe that consumers who watch pirate streams are infringing. From the user’s perspective they equate streaming to watching, which is legitimate.

Based on the hearing the Advocate General will issue a recommendation later this year, which will be followed by a final verdict from the EU Court of Justice somewhere early 2017.

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European court buildings The European Court of Human Rights (ECHR) has decided that Delfi, an Estonia-based news website, holds responsibility for defamatory comments made by anonymous readers.Access, a digital rights organization, weighed in on the decision, calling it a worrying setback. Furthermore, the organization argues that the ruling contradicts the European Union’s E-Commerce Directive, which protects intermediaries that employ notice-and-takedown mechanisms to deal with user comments.

Access noted that Delfi’s case received disappointing rulings from other courts, even though Estonia has adopted the EU’s E-Commerce Directive. Access says that it denounces the ECHR’s ruling, stating that it creates a worrying precedent that could force websites to censor content.

The ECHR defended its ruling by citing the extreme nature of the comments which the court considered to amount to hate speech, the fact that they were published on a professionally-run and commercial news website.

The Center for Democracy & Technology notes:

Holding content hosts liable for their users’ speech is a shortcut to censorship for governments and private litigants who cannot easily identify an anonymous speaker or seek a judgment against her. The threat of liability creates strong incentives for content hosts to preview and approve all user comments, and to censor with a broad brush, limit access to their services, and restrict users’ ability to communicate freely over their platforms. In a world where all online speech is intermediated by web servers, news portals, social media platforms, search engines, and ISPs, the collateral consequences of intermediary liability are potentially enormous.

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European Court of Justice Depending on the outcome of a pending case there that calls the viability of open wireless networks into question. EFF and its partners have formulated an open letter presenting our views on why a result that threatens open wireless would be a serious loss to innovators, small businesses, travelers, emergency services and users at large.

One of the legal protections that currently supports open wireless is the principle that Internet intermediaries, such as ISPs and wireless hotspot operators, are not responsible for content that passes over their networks. In Europe, this principle derives from Article 12 of the E-Commerce Directive , which immunizes a so-called mere conduit from liability for communications over their networks, only on condition that they did not initiate the communication, select its recipient, or modify it in transit. This provision, however, does not shield such providers from various type of enforcement measures in aid of rights holders, such as website blocking. The permissibility of these measures then depends on a simple rule: are they good for the society at large?

The application of this legal framework to open wireless networks has come under challenge in the McFadden reference (C-484/14) concerning a German shopkeeper whose free open wireless network was allegedly used to infringe copyright. In the preliminary reference to the Court of Justice of the European Union, the Europe’s highest court is asked whether an enforcement practice requiring open wireless networks to be locked is an acceptable one. Germany’s Federal Supreme Court in 2010 held that the private operator of a wireless network is obliged to use password protection in order to prevent abuse by third parties. If the CJEU affirms this finding, the effect could be to extend this bad precedent throughout Europe, grounding the open wireless movement across the continent. If on the other hand it rejects that finding, German law could be forced to return to sanity, allowing thousands of hotspot operators to open up their networks again.

The main question point in the case turns on whether locking of open wireless networks would be a proportionate enforcement mechanism that advances the public interest. The open letter, co-written with Martin Husovec , Affiliate Scholar at Stanford Law School’s Center for Internet & Society (CIS), points out that prohibiting open wireless networks creates a serious obstacle to legitimate trade, that cannot be justified by the limited potential benefits of locked-down networks to rightsholders. The letter highlights exact instances of social benefits that will be lost if locking of open wireless networks becomes a standard. Holding wireless network operators anyhow accountable for content that passes over their networks thus should be against European law.

The open letter that we publish today has been supported by a coalition of other organizations from both sides of the Atlantic who support the ideals of the open wireless movement, and concur with our conclusion that an adverse decision in the McFadden case that requires Europe to lock down its open wireless networks would be a blow to human rights, economic progress and innovation across the continent. We will be updating this post as additional signatories join the call.

See open letter [pdf]

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Based on article from dailymail.co.uk

European court buildingsMax Mosley has began an appeal against the European Court rejection of his attempt to extend privacy laws. He had demanded that newspapers about to expose details of someone’s private life are forced to warn the individual before they do so. This would give the person time to seek an injunction to stop publication.

But last month the European Court of Human Rights in Strasbourg threw out the demand, saying it could have a chilling effect on journalism.

Now he has taken up his last option — applying for a hearing before a 17-judge Grand Chamber of the same court.

A statement from Mosley’s lawyers, Collyer Bristow said:

Despite the court’s “severe criticisms” of the News of the World, this and other tabloid newspapers could use the same techniques tomorrow to obtain and publish intimate photographs and details of the sex lives of individuals, without notice and in the knowledge that it is wholly unlawful.

Privacy has been the subject of considerable public and media debate in the last month and a ruling from the Grand Chamber of the Court is needed upon this important issue to close a clear gap in UK law

Read more EU Censorship News at MelonFarmers.co.uk

Based on article from swradioafrica.com

European court buildingsThe European Court of Human Rights has unanimously held that media premises are exempt from police searches, marking a major victory for press freedom across the continent.

This ruling was an acid test for the Court and for media freedom across Europe, said Geoffrey Robertson QC, counsel for a coalition of intervening organizations. It sets a high benchmark for protection of journalistic materials and will force police and prosecutors across Europe, from Russia to France, to change their practices.

In its decision in Sanoma v. the Netherlands, the Court reversed an earlier ruling and held that police cannot search media premises or seize journalistic materials unless they can show it is absolutely necessary in the investigation of a serious crime and have obtained a judicial warrant.

In this judgment, the European Court lays down a clear marker for the protection of journalistic materials, said Peter Noorlander, legal director at the Media Legal Defence Initiative. This will force a change in law and practice across Europe, not only in countries like Russia and Romania but also in France and the Netherlands, where new legislation is now required.

The Court today said in the clearest terms that all European nations must have strong laws that protect the media’s fundamental right to confidential sources in order to ensure the public’s right to know. Every country must now review their laws and ensure that these rights are fully respected. said David Banisar, Senior Legal Counsel for ARTICLE 19.