As a follow-up on its Communication of September 2017 on tackling illegal online content, the European Commission has published a non-binding “Recommendation” which formally lays down operational measures which online platforms and Member States should take, before it determines whether it is necessary to propose legislation to complement the existing regulatory framework. The Recommendation applies to all forms of illegal content which are not in compliance with EU or Member State law, such as terrorist content, racist or xenophobic illegal hate speech, child sexual exploitation, illegal commercial practices, breaches of intellectual property rights and unsafe products.  The Recommendation puts pressure on online platforms to implement more proactive measures to ensure faster detection and removal of illegal content online.  It has been criticised by digital human rights organisations as essentially forcing online platforms to “voluntarily” police and censor the internet, without respect for the fundamental right to freedom of expression.
Continue Reading European Commission publishes “Recommendation” on tackling illegal content online

Last October 2017, the Government published the General Scheme of the Communications (Retention of Data) Bill 2017 (the Bill).  The draft Bill was published in response to Chief Justice Murray’s Report, which reviewed the law concerning the retention of and access to communications data held by communications service providers, and recent decisions of the EU Court of Justice (CJEU) in the Digital Rights Ireland and Tele2 cases.  Having engaged with stakeholders to hear their views on the draft Bill, the Oireachtas Joint Committee on Justice and Equality has now published its Report on pre-legislative scrutiny of the Bill.
Continue Reading Report on pre-legislative scrutiny of new surveillance legislation published

Speaking at A&L Goodbody’s breakfast seminar, ‘GDPR – The Last Lap‘, Anna Morgan, Deputy Data Protection Commissioner, has warned that companies who ‘over-report’ and adopt an overly conservative approach to the GDPR’s breach notification requirements may risk enforcement action from the Data Protection Commission (DPC).
Continue Reading Over-Reporting Data Breaches to Data Protection Commission may result in enforcement action, warns Deputy Data Protection Commissioner

The Government has published the eagerly awaited Data Protection Bill 2018 to give effect to the GDPR (2016/679) and to provide, in the limited areas permitted, for national derogations. The Bill repeals the Data Protection Acts 1988 and 2003 (the Acts), except for those provisions relating to the processing of personal data for the purposes of national security, defence and the international relations of the State.  It also provides for similar restrictions on individuals’ rights to those which currently exist under section 5 and 8 of the Acts, such as in regard to data processed for the prevention, detection, investigation and prosecution of criminal offences; or for the exercise or defence of legal claims.

The GDPR does not impose any criminal sanctions on controllers or processors for contravening its provisions, but leaves it to Member States to do so, and the Bill provides for a number of offences.  Unsurprisingly, the Bill proposes that enforced access requests; unauthorised disclosure of personal data by a processor or by an employee or agent of the processor; and disclosure of personal data obtained without authority will continue to constitute offences post-May 2018 . These offences will be punishable by a fine of up to €50,000 and/or up to 5 years’ imprisonment. The Bill also proposes the continuation of personal criminal liability for directors, managers, secretaries, or other officers of a company, for offences committed by a company, which are proved to have been committed with the consent or connivance of, or to be attributable to any neglect of such persons.Continue Reading Irish Government publishes Data Protection Bill 2018

The Minister for Communications, Denis Naughten, has confirmed that plans to appoint a Digital Safety Commissioner for Ireland (DSC) will go ahead in 2018. The DSC will act as an ‘Internet regulator’, with powers of enforcement and responsibility for a ‘notice and takedown’ regime, to ensure the online safety of Internet users.
Continue Reading Digital Safety Commissioner to be appointed in 2018

With just over 100 days until the GDPR comes into force, the European Commission has launched GDPR guidance and a new online tool to help businesses to prepare for their new data protection legal obligations. The Commission has also called on national governments to prepare for the new rules.  Although the GDPR is directly applicable across the EU from 25 May 2018, Member States need to take steps to implement national legislation to adapt existing laws, and provide for any derogations from the GDPR.

So far only two Member States, namely Germany and Austria, have adopted the relevant national legislation. The remaining Member States are at different stages in their legislative procedures (State of play available here).  When adapting their national legislation, Member States are prohibited from repeating the text of the GDPR, unless such repetitions are strictly necessary. The Commission warns Member States that it is important to give businesses enough time to prepare for all the provisions that they have to comply with.Continue Reading EU Commission launches new GDPR online tool

In Susquehanna International Group Ltd v Needham [2017] IEHC 706, the Irish High Court considered the novel question of whether a court could order a person to make a data access request in aid of making discovery of documents. Ultimately, the High Court held that it could compel a party making discovery to make a data access request in order to obtain documents which were within its power, where that request was not oppressive or disproportionate.

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Continue Reading Court ordered defendant to make data access request in aid of discovery

The European Commission (EC) has issued a notice reminding stakeholders that due to the UK’s intention to leave the EU, they will be considered a ‘third country’ for the purposes of data transfers from 10 March 2019 (available here).
Continue Reading European Commission reminds stakeholders that UK is a third country for data transfers from 10 March 2019

In its recent Report on the Privacy Shield, the Article 29 Working Party (WP29) recognised the progress of the Privacy Shield in comparison with the invalidated Safe Harbour, and the efforts made by the U.S. authorities and the Commission to implement the Privacy Shield. However, the WP29 identified a number of concerns. Like the European Commission (EC), in its first annual review of the EU-US Privacy Shield, the WP29 called for the appointment of a permanent Privacy Shield Ombudsperson (and further explanation of the rules of procedure including by declassification), and filling the remaining positions on the Privacy and Civil Liberties Oversight Board (PCLOB).  The WP29 requested these concerns to be prioritised and addressed prior to 25 May 2018, when the GDPR comes into force.

The WP29 further called for clear guidance on the Privacy Shield Principles, HR data and onward transfers, and increased supervision of compliance with the Privacy Shield principles.  The US authorities are also requested to clearly distinguish the status of processors from that of controllers both at the time of their self-certification and at the time of further check.  The WP29 demands these remaining issues to be resolved, at the latest, at the time of the next annual review of the Privacy Shield. If no remedies are brought to address the concerns raised by the WP29 within these time frames, the WP29 warned it will bring the Privacy Shield adequacy decision to the national courts for them to make a reference to the Court of Justice of the European Union (CJEU) for a preliminary ruling.Continue Reading What’s the current status of the Privacy Shield?