Tuesday 22 January 2019

European court ruled data laws breached privacy, claims Dwyer

Convicted murderer Graham Dwyer claims he is innocent. Picture: Collins
Convicted murderer Graham Dwyer claims he is innocent. Picture: Collins

Tim Healy

The European Court of Justice (ECJ) found that domestic laws allowing the indiscriminate retention of telecommunications data are "not permissible" and are "off the menu", the High Court has heard.

Remy Farrell SC said a 2016 ruling by the ECJ found domestic laws allowing telecommunication data to be retained and accessed without any safeguards breach privacy rights contained in the European Union Charter.

It was the third day of a High Court action bought by convicted murderer Graham Dwyer.

Dwyer claims the 2011 Communications (Retention of Data) Act, which allowed gardaí to obtain and use data generated by a mobile phone during his 2015 trial for the murder of Elaine O' Hara, breached his privacy rights and should not have been used.

He claims the act was introduced to give effect to the 2006 EU directive concerning the retention and use of data. In 2014 the ECJ found the directive was invalid. Dwyer claims the 2011 Act suffers from the same flaws identified by the ECJ.

He claims certain provisions of the 2011 laws breach his privacy rights under the Irish Constitution, European Convention on Human Rights as well as the EU Charter.

In his action against the Garda Commissioner and the State, Dwyer seeks various declarations that his privacy rights have been breached.

The application is opposed, and the respondents say Dwyer is not entitled to any of the declarations sought.

Mr Farrell said in addition to the 2014 ECJ decision, a ruling in 2016 also supports Dwyer's application to have provisions of the 2011 Act struck down.

Counsel spoke about a case brought by communications operator Tele 2 over Sweden's data retention laws.

He said the ECJ ruled that indiscriminate retention of data, where users are not made aware private data can be accessed by parties including the police, is not allowed.

The action continues before Mr Justice Tony O'Connor.

Cork-born Dwyer (45) denies killing Ms O'Hara, and his appeal is pending before the Court of Appeal.

Irish Independent

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