Portuguese Constitutional Court strikes down Metadata Law
Portuguese Constitutional Court strikes down Metadata Law
The Constitutional Court has retroactively ruled Articles 4, 6 and 9 of the Law n. 32/2008 of July 17th, (“Metadata Law”) to be unconstitutional. The decision is dated April 19th of 2022. The Metadata Law established the possibility of retaining data on personal communications for a period of one year.
The not so unexpected decision led to both an academic and a litigation turmoil. Additional work is also expected for the Portuguese Public Prosecution Service because evidence gathered under the Metadata Law to instruct criminal investigations and procedures and trials can be rendered void.
The Case
Law n. 32/2008 of July 17th transposed into the Portuguese legal framework the content established in Directive 2006/24/EC of Parliament and the European Council of March 15th of 2006, also referred as the Directive on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks.
The Directive established several metadata retention obligations aiming to tackle organized crime and terrorism allowing law enforcement authorities to “quick freeze” specific data for period between 6 and 24 months.
Therefore, E.U. members had to create mechanisms under which the following data was to be kept:
- data necessary to trace and identify the source of communication concerning Internet access, Internet e-mail and Internet telephony;
- data necessary to identify the destination of a communication;
- data necessary to identify the date, time and duration of a communication;
- data necessary to identify the type of communication;
- data necessary to identify users’ communication equipment or what purports to be their equipment;
- data necessary to identify the location of mobile communication equipment.
This Directive was vastly challenged at EU level because it was seen as an illegal restriction of the privacy rights of EU citizens. Its provisions ended being syndicated by the European Union Court of Justice Grand Chamber, (“ECJ”) which rendered the Directive void on an April 8th of 2014 Decision for considering the Directive to be in breach of articles 7, 8 and 11 of the Charter of Fundamental Rights of the European Union, i.e., violation of the fundamental right to privacy, right to the protection of personal data and right to freedom of expression laid down in the Charter of Fundamental Rights of the European Union.
The Portuguese Case
In Portugal the content of the Directive was transposed to the Metadata Law, which established the obligation for service providers to retain data for a period of 12 months.
The obligation was not contingent on further requirements, which meant that all citizens would have their information’s kept by their internet and communications service providers without any warning or suspicion of a crime being committed.
The possibility of harvesting a citizen’s personal information without reasonable suspicion of a crime alerted the Ombudsman for the breach of the Constitution. Breach of Constitution goes hand in ahdn with the reasoning and precedent set by the ECJ ruling. Therefore, in 2019, the Ombudsman filed a petition before the Portuguese Constitutional Court requesting the provisions to be declared unconstitutional.
The Aftermath
A retroactive decision will always cause distress within the legal community and economic agents. In practice, evidence gathered during investigations can no longer be used and some criminal cases must be dismissed.
Some sectors of the academia downplayed the provisions’ unconstitutionality stating it will not affect cases already adjudicated to Criminal Courts. However, this reasoning is highly questionable, and others find that a set of extraordinary appeals can now be filed.
The General Public Prosecutor filled an appeal requesting the annulment of the Constitutional Court’s ruling. Furthermore, in any case, the General Public Prosecutor requested for the effects of the decision not to be retroactive.
In light of this appeal, it is possible that the grounds and reasoning of the decision could be clarified with no fundamental change. However, we find that limits to its retroactive effects is highly unlikely because, as that matters falls within the Court’s discretion.
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