Despite two rulings from the Court of Justice of the European Union (CJEU) in 2014 and 2016 against general and undifferentiated (blanket) data retention, a majority of EU Member States still have national data retention laws in place. Denmark is one these Member States.
Two months after the Tele2 judgment of 21 December 2016 (joined cases C-203/15 and C-698/15), the Danish Minister of Justice told the Legal Affairs Committee of the Parliament that the Danish data retention framework does not comply with EU law because it covers every subscriber. At the same time, the Minister of Justice refused to repeal the illegal data retention provisions and argued that there was not a specific deadline for how quickly EU Member States are required to adapt their national laws to comply with a judgment from the CJEU.
As of June 2018, the Danish Ministry of Justice is officially waiting for guidance from the European Commission before a new data retention law can be proposed to the Danish Parliament. The European Commission has promised to deliver guidance on how Member States can comply with the Tele2 judegment which bans blanket data retention, but does not rule out targeted data retention. From the outside, it would appear that the Danish government has very little interest in resolving the current deadlock, since the existing data retention provisions are still in place. The same applies to the provisions for access to the retained data which also require substantial changes to comply with the second part of the Tele2 judgment. For example, access to certain types of retained data, in particular location data, is not limited to cases involving serious crime.
A majority in the Danish Parliament has so far approved the government’s plan to postpone the revision of the now illegal data retention law. However, the Danish government is facing a new challenge since the Associaton Against Illegal Surveillance filed a lawsuit on 1 June 2018 against the Minister of Justice demanding the immediate annulment of the data retention provisions. The Association Against Illegal Surveillance was formed in the beginning of 2018, shortly after the Minister of Justice announced that contrary to his earlier expectations, there would not be a revision of the data retention law in the parliamentary year 2017-18. The association, led by spokesperson Rasmus Malver, with a professional background in human rights law, initiated a very successful crowdfunding campaign on social media, which has so far collected 60,000 euros from more than 1000 individuals and some larger donations from civil rights organisations, including Amnesty International Denmark.
On 4 June 2018, the data retention lawsuit against the Danish government received a considerable economic boost when the Danish Civil Rights Fund (Borgerretsfonden) backed the lawsuit with a guarantee to cover up to 50% of the legal expenses. This effectively doubles the contributions received through crowdfunding. The objective of the Civil Rights Fund is promote the rights of the individual versus the state and to provide legal assistance to individual citizens whose rights have been violated by public authorities. Law professor and board member of the Civil Rights Fund Hanne Marie Motzfeldt gave the following explanation for the large economic donation to the data retention lawsuit, in an interview with the Danish newspaper Politiken: ”The foundation of our form of government is that public authorities comply with the law. If they fail to do so, we must use the courts.”
The Minister of Justice has not yet responded to the lawsuit. Denmark does not have a constitutional court or a specialised legal system for challenging the validity of laws or administrative provisions. Such legal challenges are handled by the ordinary court system as civil litigation procedures, starting at the lowest court level (District Courts). The Association Against Illegal Surveillance has applied to have the case transferred to the High Court, from which the appellant court would be the Danish Supreme Court. If approved, this is likely to save time.
Since legal challenges against laws or government decisions occur very infrequently in Denmark, it is difficult to predict how long the legal proceedings will take. The Ministry of Justice has various options for delaying the case. One of these options is to ask the court to rule on whether the plaintiff has legal standing in the case. The plaintiff has carefully addressed the issue of legal standing in the complaint to the court, but a dispute over legal standing will inevitably delay the proceedings and the possibility of getting a court ruling against data retention in Denmark.
Denmark: Our data retention law is illegal, but we keep it for now (08.03.2017)
Eurojust: No progress to comply with CJEU data retention judgements (29.11.2017)
Website of the Association Against Illegal Surveillance (”Foreningen mod ulovlig logning”)
Website of the Civil Rights Fund (”Borgerretsfonden”), in Danish
The citizens’ lawsuit against the Minister of Justice receives a large economic boost, Politiken (in Danish, 04.06.2018)
(Contribution by Jesper Lund, EDRi member IT – Political Association of Denmark (IT-Pol), Denmark)