Luxembourgh Times

Murder probes get data-privacy ground rules from top EU court

Judges at ECJ in Luxembourg weighed in following high-profile murder case based on the use of phone records gleaned by police

Top EU judges sit in the golden ECJ towers in the Kirchberg area of Luxembourg

Top EU judges sit in the golden ECJ towers in the Kirchberg area of Luxembourg © Photo credit: LW archive

Source: Bloomberg

Murder investigators in the European Union avoided a blanket ban on the use of suspects’ phone records even as the bloc’s top court confirmed a prohibition on the retention of swathes of citizens’ communications data.

The EU Court of Justice said on Tuesday that EU law “precludes the general and indiscriminate” scooping up of traffic and location data by crime agencies. But on the other hand, judges said national rules can allow the “targeted” retention of traffic and location data for “the purposes of combating serious crime and preventing serious threats to public security.”

The Luxembourg-based EU court in a landmark ruling in 2020 said only serious threats to national security should warrant access to phone data stored on a general and indiscriminate basis. That exemption includes terrorism cases, and an EU court adviser in November said it excludes both market-abuse cases and alleged murders.

EU judges weighed in after Irish judges sought guidance in a high-profile murder case that was based on the use of phone records gleaned by police. Graham Dwyer was convicted by an Irish court in 2015 for the murder of Elaine O’Hara, a childcare worker, in 2012. The case quickly earned notoriety in Ireland amid a nine week long trial, with Dwyer’s personal life widely publicised, as has been his time in prison.

In Tuesday’s judgment, the EU court said “the admissibility of evidence obtained by means of such retention” was a matter of national law.

A spokesman for Ireland’s Justice Minister Helen McEntee said the Irish case “will will now revert to the Supreme Court and the Department of Justice will consider, together with the Attorney General’s Office, the judgment of the Supreme Court when the case is finalised.”

The EU court’s ruling could also offer clues on the outcome in a separate case that will be decisive for one of France’s biggest insider-trading probe, where the two main suspects challenged investigators’ rights to access their phone records. An adviser to the EU court in November criticised French law at the time for failing to guarantee their privacy rights.

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