DIGITAL RIGHTS IRELAND LTD V. IRELAND,

Article 7 CFR: The obligation on providers of publicly available electronic communications services or public communications networks to retain data relating to a person’s private life and his communications in itself constitutes an interference with Article 7. Access of competent national authorities to the data constitutes a further interference with that right. Any limitation on the exercise of rights and freedoms laid down by the CFR must be provided by law, respect their essence and, subject to principle of proportionality, limitations may be made to those right and freedoms only if they are necessary and genuinely meet objectives of general interest recognized by the EU or the need to protect the rights and freedoms of others. Even though retention constitutes a particularly serious interference with the right to privacy, it is not such as to adversely affect the essence of those rights given that the Directive does not permit the acquisition of knowledge of the content of the electronic communications. Nor does it adversely affect the essence of the right to protection of personal data because certain principles of data protection and data security must be respected by providers of publicly available electronic communications services or public communications networks –to ensure appropriate technical and organizational measures are adopted against accidental or unlawful destruction, accidental loss or alteration of the data. (¶¶ 38–40)

Article 52(1) of the Charter provides that any limitation on the exercise of the rights and freedoms laid down by the Charter must be provided for by law, respect their essence and, subject to the principle of proportionality, limitations may be made to those rights and freedoms only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.

So far as concerns the essence of the fundamental right to privacy and the other rights laid down in Article 7 of the Charter, it must be held that, even though the retention of data required by Directive 2006/24 constitutes a particularly serious interference with those rights, it is not such as to adversely affect the essence of those rights given that, as follows from Article 1(2) of the directive, the directive does not permit the acquisition of knowledge of the content of the electronic communications as such.

Nor is that retention of data such as to adversely affect the essence of the fundamental right to the protection of personal data enshrined in Article 8 of the Charter, because Article 7 of Directive 2006/24 provides, in relation to data protection and data security, that, without prejudice to the provisions adopted pursuant to Directives 95/46 and 2002/58, certain principles of data protection and data security must be respected by providers of publicly available electronic communications services or of public communications networks. According to those principles, Member States are to ensure that appropriate technical and organisational measures are adopted against accidental or unlawful destruction, accidental loss or alteration of the data.