Ireland: Government Publishes New Data Retention Bill

Last Updated: 27 October 2017
Article by Philip Nolan and Jevan Neilan

Most Read Contributor in Ireland, October 2017

On 3 October 2017, the Irish government published the general scheme of the Communications (Retention of Data) Bill 2017 (the "Bill"). The Bill is a response to recent judgments of the Court of Justice of the European Union (the "CJEU"), specifically the 2014 Digital Rights Ireland case and the 2016 Tele2/Watson case.

The Bill concerns the retention of metadata by communications service providers. Metadata includes IP addresses, time stamps, call durations, and the size of communications.  

The Bill does not cover the retention of the actual content of communications. Nevertheless, the content of communications are likely to be captured by data protection legislation.

Invalidated directive

In 2014, the Digital Rights Ireland case was referred from the Irish High Court to the CJEU for a preliminary ruling on the validity of the EU Data Retention Directive 2006/24/EC (the "Directive"). In Ireland, the Directive was transposed into law by the Communications (Retention of Data) Act 2011 (the "2011 Act").

The Directive introduced laws compelling the storage of telecommunications data. It required the collection and retention of traffic and location data by companies such as mobile and broadband providers for a period of up to two years.

In Digital Rights Ireland, the CJEU acknowledged that the Directive had a legitimate objective in seeking to fight serious crime. However, it ultimately held the Directive breached EU law for allowing indiscriminate surveillance of EU citizens. The broad and far-reaching Directive breached fundamental European rights. The Directive did not limit the:

  1. categories of individuals
  2. method of communications, or
  3. types of traffic data that were collected on foot of the Directive.

Further, the Directive was silent as to the retention period for this type of data. While fundamental rights can be limited in circumstances where the limitation is necessary and proportionate to the objectives sought, the Directive did not comply with this principle.

The judgment left the 2011 Act, which had largely mirrored the Directive, with questionable legal standing. The CJEU had declared the Directive invalid, but no domestic repeal of the 2011 Act followed.

In 2015, the European Parliament's Legal Services published an opinion setting out specific guidance for legislating in the wake of the Digital Rights Ireland decision. The European Commission subsequently confirmed that "the decision of whether or not to introduce national data retention laws is a national decision". 

In late 2016, the CJEU delivered a ruling in the Tele2/Watson case, again holding that Member States cannot implement laws that require communications service providers to carry out general and indiscriminate retention of relevant data. The CJEU also held that any retained data can only be accessed by law enforcement agencies in specific limited circumstances. This judgment has significant implications for the UK Investigatory Powers Act 2016.

The Irish Bill

The Bill will replace the 2011 Act. It will set down limitations to the retention and access to data by law enforcement agencies. The Minister for Justice and Equality (the "Minister") has acknowledged that the Bill takes account of the evolving case law of the CJEU and it takes account of the shortcomings identified in Digital Rights Ireland. The Bill is yet to be fully fleshed out and is currently set out under 'Heads' in draft form. It is likely to undergo amendments before it becomes law.

The  highlights of the Bill are set out below:

  • Head 5 of the Bill provides that the law enforcement agency must apply for an order from the Minister. This order is required to authorise service providers to retain traffic and location data for the purpose of the prevention, detection, investigation, or prosecution of serious crime or safeguarding the security of the State. The traffic and location data retained must relate to a specific category or else a specific person. Subsequent Heads require that the ministerial order may be granted where the order would be "proportionate" and "there are no less intrusive means" which may achieve the same objective.
  • Head 8 of the Bill requires judicial authorisation before the data retained by the communications service provider can be released to the law enforcement agency. This Heading sets out objective criteria that the law enforcement agencies must use when they are seeking judicial authorisation for the disclosure of retained data.
  • The Bill also provides that the retention period for relevant data shall be 12 months. Further, the service provider or law enforcement agency (depending on who is in possession of the data) must destroy the data within one month of the expiry of the 12 month period. Service providers should be wary of possible breaches of the law where they are holding metadata that is older than 13 months.

What Next?

The Bill remedies many of the shortcomings of the 2011 Act, taking account of the Tele2/Watson and Digital Rights Ireland judgments. Any limitations on fundamental rights of privacy and personal data contained in the Bill are justified on the basis that they only go as far as is necessary and proportionate, unlike under the Directive and the 2011 Act.

Communications service providers should ensure to keep updated on the developments of the Bill. Once the Bill becomes law, it will be crucial for service providers, who are subject to the updated rules, to analyse their internal processes and implement compliant policies and procedures. With the GDPR allowing for significant fines for failure to comply with data retention and deletion obligations, these providers should ensure strict compliance with the new retention rules once published.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
23 Nov 2017, Seminar, Dublin, Ireland

We will host a seminar in our offices on Barrow Street on Thursday 23 November looking at Ireland as a forum for litigation for the aircraft leasing industry.

28 Nov 2017, Conference, Dublin, Ireland

Deirdre Nagle, Senior Planning Lawyer, Mason Hayes & Curran, will speak at the Irish Solar Energy Association’s Solar Ireland 2017 Conference taking place in Croke Park on 28 and 29 November. The conference will play host to key stakeholders in the Irish and international solar industry.

6 Dec 2017, Other, Dublin, Ireland

Our annual Contemporary Art at Christmas exhibition will take place on Wednesday 6 December 2017 from 6.00pm - 8.00pm in our offices on Barrow Street.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.