earticle

영어

The EU Data Retention Directive (2006/24/EC) provided an obligation for providers of publicly available electronic communication services and of public communication networks to retain traffic and location data for at least six months up to two years for the purpose of the investigation, detection, and prosecution of serious crimes. Most of the member States of EU transposed the Directive into national laws. Evaluation Report on the Data Retention Directive European Commission stated that data retention is a valuable tool for criminal justice systems and for law enforcement in the EU and proposed revision of the data retention framework and provided recommendations how this should be done. Constitutional Courts of several Member States annulled, however, national data retention regulations based on the Directive. At last, the CJEU declared the Data Retention Directive to be invalid. CJEU concluded that by adopting the Directive the EU legislature has exceeded the limits imposed by compliance with the principle of proportionality in the light of Articles 7(Respect for private), Article 8(protection of personal data) and 52(1)(Scope of guaranteed rights) of the Charter. The immediate result of the CJEU Judgement on the Directive was its invalidity. As a result, there is no longer a specific legal act on the EU level that obliges Member States to introduce or maintain data retention regimes. However, the CJEU has not determined the invalidity of any Member State’s legislation governing the retention of data. Hence, national legislation on data retention remains in force in all Member States which have not previously declared it unconstitutional, is still in force. There are also data retention provisions in Korea. The Protection of Communications Secrets Act (PCSA) prescribes them. It is meaningful to examine whether the related provisions of PCSA in the light of the criteria of CJEU judgement comply with the principle of proportionality or not. A detailed research is required.