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Sweden postpones EU data retention directive, faces court, fines

But Austria finally swallows it after court battles

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Sweden is to delay the implementation of the controversial EU data retention directive for a year, risking a heavy fine of up to €68m, whereas Austria has decided to implement the directive after a European Court of Justice ruling in 2010.

The Swedish government this week decided to postpone the implementation of the law for at least a year, although 281 MPs out of 349 – just over 80 per cent – voted in favour of the directive. The Left Party and the Greens want to renegotiate the directive in the EU. The parties used a provision in the Swedish constitution where a sixth of the votes in Parliament can postpone a decision for at least a year.

Sweden is profoundly divided over the directive, which was adopted by the EU in November 2006 after long debates.

Data retention refers to the storage of traffic and location data resulting from electronic communications. Under the agreed draft, the data retained by ISPs and phone companies will be made available only to national authorities in specific cases and in accordance with national law. Records will be kept for up to two years. However, both the Swedish Green Party and the Left Party believe the directive restricts basic rights and freedoms.

By postponing the vote, Sweden is now risking a European court case and can be fined from as much as 150 million kronor (€17m) up to 500 to 600 million (€56m to €68m).

Most European countries have implemented the directive, with France going overboard by adding the requirement that ISPs store passwords and data for the verification or modification of passwords.

Germany already adopted the directive back in 2008. Police and other law enforcement agencies had the option to acquire data in the process of investigating serious crimes, until last year when a German constitutional court struck down the measures on the basis that they interfered disproportionately with fundamental rights.

Austria was in the same position as Sweden back in 2007. It also had major data protection and privacy concerns. The Austrian Chambers of Commerce and Labour both opposed data retention. In the summer of 2007, the famous Vienna Ringstraße – which circles the city centre of Vienna – was partially blocked for about an hour as a 150 strong demonstration organised by the Austrian Pirate Party walked along it to protest against the planned data retention legislation.

In 2009 the European Commission began proceedings against Austria for breaching EU law, and last year, the European Court of Justice ruled against it for failing to establish an independent data protection authority. Just three days ago, the Austrian government announced that it would swallow the directive at long last. The Austrian Internet Service Provider Association estimates the overall costs to the country of the data retention directive to be somewhere between €15m and €20m.

See the directive here (26-page/149KB PDF). ®

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