The CJEU has confirmed the AG’s Opinion, in McFadden v Sony Music Entertainment Germany (C-484/14),  that operators of a free Wi-Fi service, who offer that service to the public, are not liable for copyright infringements committed by users of that network. However, such an operator may be required to password-protect its network in order to bring an end to, or prevent, such infringements.
Continue Reading Free WiFi providers not liable for users’ copyright infringements

In Martin v Data Protection Commissioner [2016] IEHC 479, Mr Martin sought to challenge the Data Protection Commissioner’s (DPC) refusal to investigate disputed facts of his data protection complaint via an oral hearing. The High Court held that the DPC was not empowered to hold an oral hearing under the Data Protection Directive 95/46/EC or the Data Protection Acts 1988 and 2003 (the Acts), even where there is a conflict of evidence. Furthermore, the requirements of natural and constitutional justice do not confer an inherent power on the DPC to do so.

The decision confirms that it cannot be inferred from the Acts, which impose on the DPC a duty to investigate and make a decision in relation to a complaint, that the DPC has the power to conduct an oral hearing. Individuals do, however, have a right to appeal a decision of the DPC to the Circuit Court where an oral hearing can take place.Continue Reading High Court refuses oral hearing of complaint to Data Protection Commissioner

On 28 July 2016, the Court of Justice of the EU (CJEU), in VKI v Amazon EU Sárl (Case C-191/15), reconfirmed its earlier decision in Weltimmo (C-230/14) regarding the test for applicable law in relation to data processing activities.

The CJEU held that the processing of personal data by an undertaking engaged in electronic commerce is governed by the law of the Member State to which it directs its activities, if the undertaking carries out the data processing in question “in the context of the activities” of an establishment situated in that Member State.  It is for the national court to determine whether that is the case.  The fact that the undertaking does not have a branch or subsidiary in that Member State does not preclude it from having an establishment there.  The degree of stability of the arrangements and the effective exercise of activities in the Member State in question must be assessed. 

The CJEU also held that a standard term choosing a seller or supplier’s law as governing law is unfair within the meaning of the Unfair Consumer Contracts Directive (93/13/EEC).  As a result companies will need to consider whether their standard choice of law clauses in Business to Consumer contracts are unfair and therefore invalid. Continue Reading CJEU delivers judgment on applicable data protection law

The Advocate General has given his Opinion in a case concerning the interpretation to be given in a national context to the judgment of the Court of Justice of the EU (CJEU) in 2014 in Digital Rights Ireland (which found the EU Data Retention Directive to be invalid). The Advocate General found that an obligation to retain data imposed by a Member State on providers of electronic communication services may be compatible with EU law, subject to strict requirements.
Continue Reading Advocate General advises that obligation to retain data imposed by a Member State on electronic communications service providers may be compatible with EU law

The Article 29 Working Party (WP29) has issued a Press Release indicating it still has concerns about the Privacy Shield.  However it appears that the WP29 (consisting of representatives of the EU Data Protection Authorities) will refrain from challenging the Privacy Shield until after mid-2017. 
 Continue Reading Privacy Shield – Not likely to be challenged by EU DPAs for at least one year

On 28th July 2016, the Irish Court of Appeal, in Sony Music Entertainment (Ireland) Ltd. & Ors v UPC Communications Ireland Ltd. [2016] IECA 231, confirmed that national courts have jurisdiction to grant graduated response system (GRS) injunctions against innocent intermediaries, such as ISPs, in response to alleged copyright infringement. This is the first GRS order of its kind made anywhere in the EU. 

The Court held that Article 8(3) of the Information Society Directive (2001/29/EC) (the 2001 Directive), implemented in Ireland by section 40(5A) of the Copyright and Related Rights Act 2000, provided the jurisdiction to grant such orders. Article 8(3) requires Member States to ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.Continue Reading Court of Appeal confirms jurisdiction to order ISPs to take action against copyright infringement

Following the Brexit Referendum and the uncertainty now surrounding the future of data flows between the UK and the remaining EEA States, the UK Information Commissioner’s Office has published an update on its blog: “GDPR still relevant for the UK“. The update emphasises the importance of the GDPR to many organisations in the UK and notes:

“With so many businesses and services operating across borders, international consistency around data protection laws and rights is crucial both to businesses and organisations, and to consumers and citizens. The ICO’s role has always involved working closely with regulators in other countries…

Continue Reading ICO states that GDPR is still relevant for the UK

In 2013, Mr Justice Gilligan refused an injunction sought by Galway Free Range Eggs Limited restraining Hillsbrook Eggs Limited from packaging or promoting their products under the name “O’Brien’s of Galway Free Range Eggs”. The Court held that it was not satisfied that the packaging used by the defendant was likely to deceive the public but did accept that there were issues to put forward to trial.

The substantive High Court hearing was held recently before Mr Justice Tony O’Connor and one of the bigger issues before the Court was the use of survey evidence and the weight to be attached to such opinion evidence.  The Court was highly sceptical of the value of market opinions and related questionnaires and stated that in this specific case “the evidence offered on behalf of the plaintiff concerning brand confusion was tenuous and unreliable”.

Continue Reading High Court finds brand survey evidence unreliable

The US Second Circuit Court of Appeals, overturning an earlier court ruling from a lower court, has held that the US Government cannot compel Microsoft to hand over emails stored on a server in Dublin in a narcotics case. The decision is a milestone victory for privacy rights and will be greatly welcomed by US technology companies storing data abroad. It should also provide reassurance to European citizens that their data will be protected by European data protection laws and the US legal system will respect their privacy rights.Continue Reading Microsoft wins landmark US appeal against search warrant for emails stored in Ireland