Earlier this year, the Irish Data Protection Commission (DPC) published a draft list of processing operations for which it considers it is mandatory to conduct a Data Protection Impact Assessment (DPIA). Following a public consultation, the DPC submitted its draft list to the European Data Protection Board (EDPB) for approval. The EDPB has now published an opinion on the DPC’s draft list. The DPC has two weeks to communicate to the EDPB whether it intends to amend its draft list or maintain it in its current form, and provide an explanation for its decision.
The Irish Government has published its legislation programme for Autumn 2018. The programme lists priority legislation for publication this Autumn, as well as legislation expected to undergo pre-legislative scrutiny. Listed below are the data protection, cyber-security and IP-related Bills coming down the track.
- Communications (Retention of Data) Bill – This Bill will revise and replace the Communications (Retention of Data) Act 2011. The Heads of this Bill were published last October 2017, following publication of Mr Justice Murray’s Review of the Law on the Retention of and Access to Communications Data. That Review concluded that many features of the 2011 Act are precluded by EU law. The 2011 Act requires telephone companies and ISPs to store everyone’s metadata for up to two years which, in Mr Justice Murray words, constitutes “a form of mass surveillance of virtually the entire population of the State”. Mr Justice Murray said that Irish legislation should be consonant with the limitations as to the proper scope of a system of communications data retention and disclosure laid down by the EU Court of Justice in a number of recent cases, including the Tele2 case. The Heads of the Bill are available here.
On 12 September 2018, the UK Deputy Information Commissioner, James Dipple-Johnstone, made a speech to the CBI Cyber Security: Business Insight Conference in which he discussed recent data breach reporting trends in the UK.
The Deputy Commissioner noted that since the GDPR came into effect on 25 May 2018, the ICO has received approximately 500 calls per week to its breach reporting line. After a discussion with the ICO’s officers, roughly one third of these organisations decide that their breach does not meet the reporting threshold. The Irish Data Protection Commission has also been reported as having received a massive increase in breach notifications since the introduction of the GDPR.
The European Parliament has adopted its position on the controversial proposed Copyright Directive, which includes a proposal for online content sharing service providers to remunerate artists (notably news publishers, journalists, musicians, performers and script authors) for their work when it is used by sharing platforms such as YouTube, Facebook or Twitter. The reform of EU copyright rules is part of the European Commission’s Digital Single Market Strategy. The Commission recognises that whilst online services provide ease of access to creative works and offer opportunities for creative industries to develop, it also generates challenges when copyright protected works are uploaded without prior authorisation from copyright holders.
The Scottish Courts have given an interesting decision in relation to IT contracts, relating to the allocation of delivery risk between supplier and customer and the importance of doing what it says in the contract.
In David MacBrayne Limited v Atos IT Services (UK) Limited (2018), Atos, a supplier, had entered into an agreement with David MacBrayne Limited to supply a digital platform. The engagement was not successful and the parties claimed and counter-claimed against each other for material breach of the contract (amongst other things).
Customer Dependencies – Whose Responsibility is Delivery?
IT contracts will often include dependencies on customers to provide the supplier with information/documentation, some negotiated more than others.
In this case, the dependency was on the customer to use all reasonable endeavours to provide such documentation, data and/or information that the supplier reasonably requested and which was necessary to perform its obligations under the contract.
The question was whether this obliged the customer to provide the supplier with detailed specifications of their requirements in sufficient time to allow the supplier to comply with their obligations under the contract. In other words, to what extent should the customer be pro-active in telling the supplier what to do and thereby share delivery risk.
The Court said such general obligations are indicative of a responsive obligation (i.e. respond to queries from the supplier) as opposed to an obligation on the customer to be proactive in setting out their requirements. The Court said such obligations did not displace the obligation of the supplier to be primarily responsible for ascertaining the requirements for the service.
When negotiating IT transactions, it is very important to carefully consider (and negotiate) the scope of dependencies. While this decision points to a pragmatic approach by the courts which favours the customer, the very existence of general (or worse, unclear) dependencies can lead to disputes becoming more protracted and costly than they need to be.
Delay – Managing The Fall Out
The contract required the supplier to provide notice and follow a particular procedure in order to deal with delays. Here that process wasn’t followed. The supplier said it instead opted for a ‘co-operative and facilitative approach’ rather than ‘reaching for the contract’.
The Court said that the supplier was in breach for not following the procedure and this did not assist the supplier in its defence of the claim for material breach for delay. Ultimately, damages were awarded against it.
The judgment of the Court in this case highlights the inherent danger of choosing to ignore the procedural requirements in a contract; it will make claims all the more difficult to successfully prove or defend. The more removed from the letter of the contract the parties conduct is, the more uncertain their legal positions. It is essential to properly manage contracts.
The Law Reform Commission has published an Issues Paper on Privilege for Reports of Court Proceedings under the Defamation Act 2009. The Paper examines and make recommendations on whether changes should be made to the Defamation Act 2009 relating to absolute privilege for reports of court proceedings. Section 17 of the Defamation Act 2009 currently provides that there is absolute privilege (i.e. complete immunity) from a defamation action where the claim is about a “fair and accurate report of proceedings” heard in any court in Ireland, Northern Ireland, or certain European and international courts.
New Regulations require organisations to obtain an individual’s explicit consent in advance of processing personal data for health research purposes. The Regulations, known as the Data Protection Act 2018 (Section 36(2)) (Health Research) Regulations 2018 (SI 314/2018), set out a number of mandatory suitable and specific safeguards to be put in place when processing personal data for health research purposes. The Regulations came into effect on 8 August 2018.
The CJEU has ruled that an unauthorised reposting of a photograph on a website which is already publicly accessible, with the consent of the photographer and without restriction preventing it from being downloaded, on another website, can infringe the copyright rights of a photographer (Renckhoff, C-161/17). It is of little importance if, as in the present case, the copyright holder does not limit the ways in which the photograph may be used by internet users.
New court rules were introduced on 1 August 2018 which will give members of the media permission to access court documents. These measures, which apply in both the civil and criminal courts, will formalise the media’s access to information. The rules give effect to Section 159 (7) of the Data Protection Act 2018 to facilitate fair and accurate reporting of court proceedings.
The European Parliament has voted for the suspension of the Privacy Shield unless the U.S. complies by 1 September 2018. The non-binding resolution was passed 303 to 223 votes, with 29 abstentions. Parliament takes the view that the current Privacy Shield arrangement does not provide the adequate level of protection required by EU data protection law and the EU Charter as interpreted by the European Court of Justice (CJEU). It considers that, if the US is not fully compliant by 1 September, then the Commission has failed to act in accordance with Article 45(5) GDPR and the Commission should suspend the Privacy Shield until the US authorities comply with its terms. Continue Reading Parliament calls on US to comply with Privacy Shield by September