Volume: 2 Issue 3 [March 2019]

Article:Data Protection Rights & National Security Objectives: Critical Analysis of ECtHR and CJEU Case Law

Author: Hassan Syed

Volume: Volume 2, Issue 3; March-2019

DOI: Nor. Am. Aca. Res. 2019 : 2(3) : 155-170

Abstract: The present heightened environment of the so-called ‘global war on terrorism’ has pushed the national security and public safety to forefront of strategic policy and legislative agendas. The human rights in general and data protection rights in particular have paled in contrast to the state security agencies intrusions in available digital data of the citizens. It is then left up to the Courts such as the European Court of Justice (‘CJEU/ECJ’) Luxembourg and the European Court of Human Rights (‘ECtHR’) Strasbourg to avail opportunities presented to them in their justiciability of data protection rights interferences. Both the Courts apply the European Charter for Fundamental Rights (‘the Charter’) and the European Convention on Human Rights (‘the Convention’) respectively to carry their analysis of rights interferences with the legitimate objectives of national security and public safety. Our critical analysis of the data protection case law of both the Courts confirms that the Courts have struck a balance in protecting the individual data protection rights and the legitimate aims of national security and public safety. Our analysis shows that it was ECtHR that laid the foundation of applying the principles of necessity and proportionality consistently in its analysis of interferences with Article 8 Convention rights in pursuing the aims of fighting serious crime and terrorism . ECJ has followed ECtHR’s reasoning of necessity and proportionality in its landmark judgments of Digital Ireland , Schrems and Watson . The ECJ was confronted with the questions of blanket coverage allowing mass surveillance and access to users’ data by the state security agencies under the EU Directives. ECJ declared such measures invalid ,failing the necessity and proportionality tests in the absence of legal measures that could protect those who did not fall into the category of suspects defined under the law. ECJ accepted such interferences with Article 7 (right to privacy) and 8 (right to data protection) Charter rights necessary in pursuits of aims to fight serious crime and terrorism. The requirement of a robust legal framework that justifies ECHR Art 8 Privacy rights interferences with data protection, has been accepted by the Court as necessary in the face of security challenges such as fighting terrorism and prevention serious transnational crimes. ECtHR also considers the availability of national legal remedies for interferences through independent bodies in its analysis of necessary and proportional in a democratic society. ECJ has also laid emphasis on availability of legal remedies in cases of interferences with data protection rights while interpreting EU Legislations in the light of rights under Art 8 CFR. While ECJ protects data rights under CFR Art 8 Data Protection Right, ECtHR extends ECHR Art 8 Right to Privacy to protect data rights. Both the Courts readily acknowledge the society’s needs to fight serious crimes and terrorism in their case law. It is the balance that both the Courts strike while relying on the principles of necessity and proportionality that ensures the protection of data rights of those who abide by the rule of law in a democratic society.

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