Privacy International v Secretary of State for Foreign Affairs & Ors

From 2001 (in respect of GCHQ) and 2005 (in respect of MI5), up until the regime introduced by the Investigatory Powers Act 2016, the Secretary of State issued directions under section 94 of the Telecommunications 1984 to electronic services providers, requiring them to provide the agencies with bulk communications data (i.e. the ‘who, when, where, how and with whom’ of a communication).

Privacy International argued before the Investigatory Powers Tribunal (‘IPT’) that this was contrary to EU law.

The IPT delivered a judgment expressing its provisional view that the matter was outside the scope of EU law, because it concerned national security, and that the EU-law safeguards established for bulk data in joined casesTele2 Sverige and Watson could in any event not be applied. 

The IPT made a reference of the matter to the CJEU and the CJEU gave judgment on 6 October 2020. Please see further details here.

On 22 July 2021, the Tribunal delivered a judgment declaring that section 94 was incompatible with EU law.

The full judgment can be read here. 

Tom de la Mare QC, Ben Jaffey QC and Daniel Cashman acted for Privacy International before the IPT and the CJEU.