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SOLV Lawyers (weblog), 29 April 2015: 'Trajectory checks in violation of privacy laws?'

"Earlier this week, an unusual court case took place, centring on the privacy of motorists. The key question is to what extent the government is acting in accordance with the constitution and the European Convention on Human Rights (ECHR) when it records and stores motorists' license plates through route checks. According to the Privacy First foundation, the government is acting in violation of the constitution and the ECHR by not controlling how long the images are kept and by allowing the images to be used for purposes other than speed checks.

The case was prompted by the traffic fine Bas Filippini, the chairman of Privacy First, received in 2012. He challenged the fine claiming a serious infringement of his right to privacy. Route checks involve taking photos of each vehicle at two different points along a route. The photos are analysed so that the two photos of the same vehicle can be linked. The speed of the vehicle is then calculated from the distance between the two points and the time difference between the two shots. So, in effect, data of all motorists passing the section control is stored, so that some speeding drivers can be caught.

Filippini believes that the system of route controls is against the law because there is no specific legal basis on which to base this invasion of privacy. However, that legal basis is required, under Article 10 of the Constitution and Article 8 ECHR. Moreover, there are no privacy safeguards, through which, for example, data can be prevented from being misused or used for the purpose for which it was collected.

Another point raised by Filippini's lawyer also relates to Article 8 ECHR. Under that article, an invasion of privacy is only justified if it is necessary in a democratic society. This is only the case when the intrusion meets the requirements of proportionality and subsidiarity of Article 8 ECHR. In my view, for route control, this means that there is no less intrusive or lighter option that could achieve the same objective. The lawyer (rightly) stresses that efficiency and cost savings are not part of this test.

Regarding the storage of the data, the lawyer noted that the Digital Rights Ireland case, in which the European Court of Justice overturned the data retention obligation, also affects this data storage, due to the lack of a need to store all this data.

A bill is currently pending to amend the Penal Code which specifies that an investigating officer is authorised to determine and retain car registration data. The article specifies a deadline of four weeks from the date of capture, so that these data can be accessed when any of the number of listed offences occur.

On 12 May, the court will give its verdict on the matter, which exceeds the €45 fine. In any case, Privacy First has indicated its willingness to continue litigation all the way to the European Court of Human Rights in Strasbourg."

Source:!lang=en, 29 April 2015.