The Belgian Constitutional Court has ruled against the widespread retention of communication metadata, a decision that is in line with the European Court of Justice's decision that invalidated the EU directive upon which the Belgian law was based.

The EU directive on the retention of data (2006/24/EC), adopted following the bomb attacks in Madrid (2004) and London (2005), forced European telecom operators and Internet service providers to retain metadata communication of their users.

In July 2013, the Belgian Parliament adopted, through an emergency procedure, a law transposing the EU directive into Belgian law. This law compelled electronic communications service providers to retain, for a period of one year, multiple data, such as telephone numbers called from mobile phones, the physical location from where calls were placed, call dates and times, and the duration of communication.

The right to privacy

In February 2014, the Belgian League of Human Rights (LDH), the Net Users' Rights Protection Association, datapanik.org and Liga voor Mensenrechten initiated a joint crowdfunding campaign to finance an annulment procedure before the Constitutional Court.

The campaign was very well received — the goal of €5,000 was exceeded in a few weeks — and has shown, if anyone doubted, that citizens value their privacy.

Now the Constitutional Court has reaffirmed the importance of the right to privacy, set out by Article 22 of the Belgian Constitution, and recalled how any limitation of this right must be subject to strict supervision.

Challenges

Through this decision, Belgium joined the long list of EU member states that have had successful challenges to the EU directive at the national level. It should be noted that the European Commission does not plan to introduce a new proposal on the retention of communication metadata.

"This constitutional judgment should be a shock to our governments: they can’t expand infinitely the mass surveillance of their citizens," said Alexis Deswaef, president of LDH.

This gratifying decision of the Constitutional Court is a reminder that privacy remains a fundamental right that can’t be limited too lightly.