Telecoms companies collect data on every telephone call that you make and e-mail you send. They identify you, the other party, the time and duration and - in the case of mobile calls - where you are.

The Home Office is currently implementing a controversial EC Directive on data retention that will force telephone and internet service providers to keep this data for 12 months. The legislation has been introduced to help in the fight against crime but it has a wider effect that the Home Office does not appear to have considered: personal data will become available to those who wish to use it as evidence in private civil legal disputes. This has created an extra burden for telecoms companies who could find themselves dragged into customers’ private legal arguments.

The Directive must be implemented by September 15, 2007 for fixed and mobile telephones but up to 18 months later for internet services (including VOIP telephony). Its purpose is to ensure that valuable data is available across Europe as a tool to prevent, investigate, detect and prosecute criminal offences and in particular organised crime.

The Directive states that telecoms companies must keep the details necessary to identify the caller or sender and recipient of every telephone call made and e-mail sent for 6 to 24 months. The UK will require data to be kept for 12 months, replacing the current 6 months for email data in the current voluntary code of conduct. The data must also be stored in such a way that it can be accessed and transmitted without delay.

Under the Directive, all countries are required to adopt measures that ensure the data can only be used by competent national authorities. Given the nature of this data, consumers and telecoms companies would expect safeguards so that it can only be obtained to fight crime or safeguard national security. However, the UK’s draft regulation and consultation process makes no mention of this.

The data is therefore available to anyone who can persuade the Courts that they have a right to access it. This could force telecoms companies into customers’ private proceedings in circumstances where details of telephone calls made or emails sent would support one or other party’s claim and are necessary for a fair resolution. It is not difficult to see how this could occur, for example, if a case turns on whether a telephone call took place.

In addition, the data can also be obtained in the absence of existing court proceedings if it will identify a wrongdoer who cannot otherwise be found – often the case in intellectual property disputes, such as cases against spammers.

Although a company’s data protection obligations state that it must not release personal data unnecessarily, the requirement to store data so that it can be recovered easily and quickly will limit the arguments that can be used to refuse requests. (In certain circumstances, companies can attempt to refuse to supply information because of the resource burden it would involve.) Increased data requests and the need to balance competing interests will place further administrative burdens and costs on telecoms companies beyond those envisaged by the Directive.

UK-based telecoms companies can at least be satisfied that the additional burdens will be mainly administrative rather than financial: the UK is the only country which proposes to compensate telecoms companies for compliance costs and litigants are obliged to pay for disclosure of documents which they request from third parties.

Keeping personal data should help law enforcement authorities in their battle to safeguard national security and fight crime. But telecom companies must protect their customers’ privacy and use the information responsibly. However, as the draft regulations stand, they will not be able to protect the data by destroying it and will be faced with the challenge of balancing customers’ interests against those of people who think it may help their personal disputes.

The author is a dispute resolution solicitor at Olswang

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