Whose side is the law on?

THERE was no great surprise with this week’s ruling from the Court of Justice of the European Union, relating to the Graham Dwyer case. The ruling, which was delivered in open court in Luxembourg, upheld the Bandon man’s challenge to the legality of our system of retaining phone metadata. It was metadata in relation to Dwyer’s mobile phones that helped to convict him, in 2015, of the 2012 murder of childcare worker Elaine O’Hara. And while many commentators believe Dwyer could have a difficult uphill battle to overturn his conviction, the judgment, which was issued in a 129-point ruling on Tuesday, could still have significant implications for the gathering of evidence in serious crimes throughout Europe.

The judges ruled that Ireland’s system of accessing and retaining metadata is not permissible under EU law.

The ruling implies that the collection of metadata for the purpose of possible future criminal investigations is not legal, if the potential crimes do not pose a threat to national security.

The murder of Elaine O’Hara was not a threat to national security, one can deduce from the ruling. And while the ruling itself was not a shock, what may come as a shock to many EU citizens, is the importance of human life itself, as suggested by the judgment.

We cannot use phone metadata to help convict serious, brutal criminals and murderers, it seems, because the general collection of such data goes against a citizen’s right to privacy. It seems this is yet another example of GDPR issues raising their ugly heads once more.

For fear of compromising the privacy of millions of innocent citizens, we are compromising our ability to protect ourselves from a few guilty ones. It begs the question: if most citizens have nothing to hide, why should they be concerned about their data being retained, if it’s highly unlikely to ever be accessed?

Even under current Irish law, the data was only accessed in very serious criminal cases. Many of these cases are now likely to be challenged by those convicted of some incredibly serious and sometimes quite savage crimes.

The introduction of GDPR legislation came into effect in Ireland, thanks to the EU, in 2018. To say that many people play hard and fast with the relevant laws, is an understatement.

The number of State organisations that quote the legislation as a basis for not disseminating very innocent data and statistics, is no surprise to any journalist. Without a strong legal background, a member of the public is quite defenceless in the face of claims that certain information cannot be shared ‘under GDPR’.

It has become a rather useful tool in the State’s armoury against unwanted investigative journalism too, in many instances.

Journalists are increasingly being forced to arm themselves with a very in-depth knowledge of GDPR issues in order to bat away what are often spurious excuses, citing data protection, for withholding information.

Nowadays, local photographers have to frequently battle school principals and even sports managers to get names of children, as the gate keepers of the names often factitiously cite ‘data protection rules’ for not giving out such information.

We are in danger of going down the road of having newspapers with reams of photos of anonymous people – or even worse, photos with faces blurred out.

Consent forms signed by parents of schoolchildren at the start of every year cover the use of students’ pictures for publicity purposes, whether in their own publications, on their own websites, or in their local newspaper. Yet several schools shy away from relying on this consent form and feel obliged to seek permission for every single published photograph.

This is not how GDPR was meant to work. It was primarily aimed at protecting our citizens from having their personal data used by unscrupulous marketing firms, or large conglomerates, unless we had given specific permission.

It was not meant to be used as a barrier to giving our children their moments of fame and glory in the presentation of sports trophies, their participation in art competitions, their performances on stage or on the field of play.  The ruling in the Graham Dwyer case may have related to a far more serious issue: but the result is the same.

In a bid to protect the few, we have ended up shackling the many.

And maybe sometimes it’s true what they say – the law is an ass.