Legal background European law
Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the telecommunications sector (‘the e-Privacy Directive’) contains a general requirement of confidentiality of electronic communications, as well as requirements to delete traffic data when no longer needed, and other protections for electronic communications. Article 15(1) provides that Member States may derogate from certain rights in the directive (including the right to privacy) where this is a necessary, appropriate and proportionate measure within a democratic society to safeguard national security, defence, public security, the prevention or detection of crime and the purposes laid down in Article 13 of the Data Protection Directive. Article 15(1) specifically provides for the retention of communications data.
	Directive 2006/24/EC (‘the Data Retention Directive’) harmonised the retention of communications data. The Data Retention Directive was struck down by the European Court of Justice as incompatible with Articles 7 and 8 of the Charter of Fundamental Rights in joined cases C-293/12 and C-594/12 Digital Rights Ireland & Seitlinger, on the basis that it did not contain sufficient safeguards. No replacement Directive has, as yet, been proposed.