Retention of Effective Legal Challenge

Elle Todd

Following on from the a ruling by the ECHR at the end of last year regarding the retention of DNA data on criminal suspects, the Court of Appeal has in the last week made its judgment in relation to retention by the police of photos (loosely) collected in connection with an arms trade protest.

In both cases it was Article 8 of the ECHR (interference with the right to respect for private life) which was the focus and in both cases the rights of the individual were upheld. But where, Datonomy asks, is the discussion around obligations on data retention which are enshrined in the Data Protection Act in all of this?

Following the former ECHR judgment there was outrage from privacy groups at the UK Government’s apparent disregard of its recommendations as the Government proposed new plans for retention of DNA data which still proposed blanket retention and had insufficient consideration of different types of individual – whether suspect, innocent or guilty or circumstances.

This new case may well give more weight to the privacy arguments and assist those in responding to the Government’s consultation (which closes in August this year). But maybe it is time for Data Protection to take a more central position in this debate.

The Act’s fifth principle states that “personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes” but the Information Commissioner appears to date to have stayed out of providing any opinion on the topic and few seem to have chosen this line of legal challenge. Is the framework and concept of “necessity” perchance too weak in the Act?

Datonomy for one hopes that the new Information Commissioner will join in the debate in the consultation itself.

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