Data protection: Ombudsman receives reply from the Minister of Justice on recommendation to amend the law

The Ombudsman, Maria Lúcia Amaral, received a reply from the Minister of Justice, Francisca Van Dunen, to the  recommendation made to the Government to amend the law on the retention of data generated in the context of the provision of electronic communications services.

"I will follow with concern the issues raised by your recommendation, and also note that in view of the legislative calendar, the complexity associated with a legislative amendment initiative to the regime provided for in Law no. 32/2008, of July 17, whose competence belongs to the Assembly of the Republic (…) I fear it is not possible for the Government to be able to present a proposal to the Parliament with this aspiration, "says the Minister of Justice in her reply to the Ombudsman.

Law 32/2008 transposed into national law a European directive (Directive 2006/24 / EC) declared invalid in 2014 by the Court of Justice of the European Union (CJEU). In the ECJ’s view, reaffirmed two years later, in the determination of the data retention obligation – traffic data, location data and other related data concerning citizens’ electronic communications, with the exception of their content – the Directive violated fundamental rights enshrined in Charter of Fundamental Rights of the European Union, in so far as, when taken as a whole, such data are likely to allow very precise conclusions to be drawn about the private life of individuals.

As soon as the directive is declared invalid by the CJEU in 2014, it is as if it had never existed. However, in Portugal this decision had no effect on the national transposition law, imposing on electronic communications service providers the maintenance of all electronic communications data for all citizens for one year.

Furthermore, following the two judgments of the CJEU on this matter, the National Data Protection Commission – an entity that the law establishes should be the control of the conditions of retention of data in Portugal – decided to "disengage" the law in situations that submitted for consideration.

The Ombudsman’s recommendation, in order to bring the law into conformity with the requirements deriving from the Charter of Fundamental Rights of the European Union and remedy the lack of supervision currently in place in Portugal, follows a complaint lodged by a rights association digital images.