High Court: Digital rights group has application for preliminary ruling dismissed

About this case:

• Judgment:
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Finding that the issues in the case were too complex to justify proceeding without evidence, Ms Justice Costello dismissed the notice of motion.

Background

Digital Rights Ireland Limited sought an order setting down for trial as a preliminary matter the European Union Law issues in the proceedings or in the alternative an order of referring to the Court of Justice of the European Union the question:

In light of the Provisions of the Charter of Fundamental Rights and Freedoms, and the findings of the CJEU in Digital Rights Ireland v. Ireland, whether a domestic legislative measure which requires indiscriminate retention of telecommunications data for a period longer than is required for the legitimate commercial purposes of the telecommunications providers, is valid.

The application was brought pursuant to O. 25 and O. 34, r. 2 of the Rules of the Superior Courts.

As a company with the objective of promoting and protecting civil and human rights, particularly those arising in the context of modern communication technologies, Digital Rights alleged that the State defendants – namely the Minister for Communications, Marine and Natural Resources, the Minister for Justice Equality and Law Reform, the Commissioner of an Garda Síochána, Ireland, and the Attorney General – wrongfully exercised control over data in that they illegally processed and stored data relating to Digital Rights, its members, and other mobile phone users contrary to European Union law and the Constitution.

High Court

Digital Rights Ireland submitted that in light of the decisions of CJEU in Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources, and Others and Kärntner Landesregierung and Others (joined cases C-293/12 and C-594/12) (hereafter “Digital Rights”) and Tele2 Sverige AB v. Post-och telestyrelsen and Secretary of State for the Home Department v Tom Watson and Others (joined cases C-203/15 and C-698/15) (hereafter “Watson”) that certain issues of union law are Acte Éclairé and that it is thus appropriate to try as a preliminary matter the European Union law issues in the proceedings. Digital Rights claimed the effect of the two decisions established five cardinal principles:

Digital Rights Ireland argued that Irish legislation fails to satisfy each of these five principles, and submitted that the Communications (Retention of Data) Act 2011 mirrors the provisions of Directive, which was declared to be invalid in Digital Rights. As such, there is a strong argument that the Communications (Retention of Data) Act 2011 is likewise invalid.

The plaintiff submitted that the issues of law are readily identifiable and the argument at trial will be based upon the provisions of domestic law and comparing them with the rulings of the CJEU.

It was submitted that evidence would not be necessary or, in the alternative, in light of submissions made on behalf of the defendants, that the submission of evidence was irrelevant to two critical features of the Irish legislation – that it required the retention of the data of all subscribers for a period of up to two years and that it did not require a prior authorisation by a court or independent administrative body before issuing a disclosure request pursuant to s. 6 to a service provider to disclose the data.

On that basis, Digital Rights Ireland submitted that evidence was not required and this was an appropriate case in which to deal with the matter in an efficient and cost effective way by trial of a preliminary issue of the issues of European law in the proceedings.

Decision

At the outset of the discussion, Justice Costello emphasised that she was not concerned with the merits of Digital Rights Ireland’s case or the arguments advanced on either side – but was concerned with how the case should proceed to be tried and whether, in accordance with the rules and the case law, it would be appropriate to direct a trial of a preliminary issue in the case.

Justice Costello described the issues for resolution in the proceedings as complex and not straightforward – as such, she could not accept that it was permissible or appropriate to proceed without evidence.

Finding that the action could not be tried in vacuo – Justice Costello explained that in PJ Carroll & Co. Limited v the Minister for Health and Children 1 IR 294, the Supreme Court made it clear that the defendants were entitled to lead evidence as to the proportionality of the measure adopted in defence of an allegation that the legislation was unconstitutional.

Justice Costello was also not satisfied that the issue was one which could result in the terminating of the claim as described in L.M. v. Commissioner of An Garda Síochána & Ors IESC 81.

If the plaintiff was successful and the legislation impugned was held to be invalid by reason of the provisions of the Charter and European law, then the legislation would be struck down. However, this did not dispose of the balance of the case or lead inevitably to the failure of the defences raised to other issues.

Adding that the trial of the preliminary issue was unlikely to result in any saving of time or costs, Justice Costello refused the application for the trial of a preliminary issue.

The application for a reference pursuant to Article 267 of TFEU was also refused, and the notice of motion was dismissed.