Recently, the High Court ruled that the government’s Data Retention and Investigatory Powers Act (DRIPA) is unlawful and incompatible with European Union law. Under Article 8 of the European Convention on Human Rights (ECHR), everyone has the basic right to privacy. This ruling is a significant milestone for the ongoing campaign to protect people’s right to privacy, especially when working and communicating online.

DRIPA gave the government and other public authorities the power to retain data longer than would be naturally necessary. It established provisions allowing the same authorities to intercept and collect data without justifying their reasoning to anyone other than themselves. Typically, a company would retain data for as long as commercially necessary, once the data was no longer needed, it would be deleted. The Act required that service providers should retain data longer than this period. Groups such as Liberty and JUSTICE have openly and aggressively criticised the Act on the basis that it infringes the right to privacy.

The High Court declared the Act’s incompatibility on the grounds that sections 1 and 2 of the Act “do not provide clear and precise rules to ensure data is only accessed for the purpose of preventing and detecting serious criminal offences” and that access to the data, under the Act, was “not authorised by a court or other independent body”. The declaration illustrates that the right to privacy is something that should be protected, rather than eroded and the Court’s decision ensures those with power remain accountable and don’t act beyond the scope of their powers.

So, what’s DRIPA’s fate? Interestingly, when a court issues a declaration of incompatibility on the basis of a breach of the ECHR, section 4(6)(a) of the Human Rights Act 1998 provides that the original Act isn’t rendered void. The Act remains in force and will remain so until the government amends it in order to ensure that it complies with the ECHR. It will be interesting to see what, if any, amendments are made by the government to ensure that DRIPA conforms to the requirements of the ECHR.

There is a wealth of other bills going through Parliament that purport to collect data because they are necessary for the protection of national security. They too are controversial because a balance needs to be struck between the protection of national security and the protection of the fundamental and basic right to privacy. Nick Clegg said that whilst politicians appear to champion the freedom of speech, they advocate “a huge encroachment on the freedom of all British citizens”.

The ruling of the High Court illustrates that the issue of retaining the right to privacy online is an important and topical issue and mustn't be arbitrarily undermined. As a marketing agency working with large companies who collect significant amounts of customer data we need to be aware of any changes in this area. Likewise, as we are challenged to cut through the noise to find more ways to personally engage with people, we will certainly be watching to see what happens next!

Blog by: Daniel