18 Feb The storage of pre-paid SIM card users’ data by telecommunications companies is in accordance with the Convention
In the case of Breyer v. Germany (application no. 50001/12) the European Court of Human Rights held, by six votes to one, that there had been no violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights.
The case concerned the storage of pre-paid SIM card users’ data by telecommunications companies. In accordance with 2004 amendments to the Telecommunications Act companies had to collect and store the personal details of all their customers, including users of pre-paid SIM cards, which had not previously been required. The applicants, civil liberties activists and critics of State surveillance, were users of such cards and therefore had to register their personal details, such as their telephone numbers, date of birth, and their name and address, with their service providers. In 2005 they lodged a constitutional complaint against various sections of the Act, including sections 111, 112 and 113. These provisions, as far as relevant in the present case, covered respectively the obligation to collect the data and for the authorities to access it, both automatically and on demand. On 24 January 2012 the Federal Constitutional Court found that the provisions in question were compatible with the Basic Law as being proportionate and justified.
The Court found in particular that collecting the applicants’ names and addresses as users of pre-paid SIM cards had amounted to a limited interference with their rights. However, the Court found that the legal provisions were clear and foreseeable. Furthermore, the interference had pursued the legitimate aims of public safety, the prevention of disorder or crime and the protection of others’ rights.
The Court assessed as well the proportionality of the interference by the provisions on access to the data. It observed that the automated procedure under section 112 had very much simplified data retrieval but held that the fact that the authorities which could request access were specifically listed in section 112. Furthermore, section 113, on the procedure for written requests for data, did not provide the precise names of bodies but gave their functions, which the Court considered was clear enough to foresee which bodies could ask for information. Both provisions provided further additional safeguards against abusive demands.
It held that the law in question had additional safeguards while people could also turn to independent data supervision bodies to review authorities’ data requests and seek legal redress if necessary.
Overall, Germany had not overstepped the limits of its discretion (“margin of appreciation”) in applying the law concerned and there had been no violation of the applicants’ rights by the collection of the data.
References from the European Convention on Human Rights