On 5th October 2016, our IP & Technology team hosted a seminar on the new EU General Data Regulation (GDPR), which takes effect from 25 May 2018.  The Data Protection Commissioner, Helen Dixon, gave a keynote address at the event, which was followed by commentary from our IP and Technology Partners, John Whelan, John Cahir, Mark Rasdale and Claire Morrissey.

The GDPR introduces substantial changes to EU data protection law.  Companies have 19 months remaining in which to make preparations for the GDPR, but given its extra-territorial scope; new concepts such as accountability and privacy by design and…
Continue Reading A&L Goodbody Guide on the EU General Data Protection Regulation

On 13 September 2016, the Central Bank of Ireland (the CBI) published new guidance on IT risk management and cybersecurity for financial service firms. Publication of the Guidance follows the CBI’s previous actions in relation to cyber risks in the funds, insurance and banking sectors (see previous blog here). The CBI acknowledges that IT plays an integral part in the supply of financial services and calls on Boards and Senior Management of regulated firms to recognise the ever increasing incidences of cyber-attacks and business interruptions. It requests such firms to acknowledge their responsibilities in this regard and prioritise IT security. This responsibility involves establishing and maintaining a resilient IT strategy, while ensuring that it aligns with the firm’s general business strategy. It states that a robust oversight and engagement on IT matters at the Board and Senior Management level promotes an IT and security risk aware culture within the firm.
Continue Reading The Central Bank of Ireland publishes new Cross Industry Guidance on IT and Cybersecurity Risks

The High Court in Muwema v Facebook Ireland Ltd [2016] IEHC 519 held that Facebook had no duty to remove defamatory content posted by an anonymous third party. Justice Binchy did, however, make a Norwich Pharmacal order requiring Facebook to disclose the identity and location of the person operating the page involved.Continue Reading ISP not required to remove defamatory statements

In GS Media v Sanoma Media Netherlands and Others (C-160/15), the CJEU held that the posting of a hyperlink on a website, giving access to copyright-protected work on another website, will not constitute a "communication to the public" under Article 3(1) of the Copyright Directive 2001/29/EC, if the person posting the link did not do so to seek financial gain, and did not know that the hyperlink was published illegally without the consent of the copyright holder.  In contrast, if a hyperlink is provided for profit, knowledge of the illegality of the publication on the other website must be presumed.Continue Reading CJEU finds linking to freely available but unauthorised content may not constitute copyright infringement

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