Cyber Risk & Data Privacy

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The Government Chief Whip, Seán Kyne TD, has published the Government’s legislation programme for Summer 2019.  The updated programme follows on from the special programme launched in January 2019 which focused on Brexit. We have set out below the key data protection and technology-related legislation coming down the tracks.

Priority Legislation

  • Communications (Retention of Data) Bill –  This Bill will repeal and replace the Communications (Retention of Data) Act 2011 which requires data generated by mobile phones to be retained by telecommunications service providers for two years, and allows An Garda Síochána and certain other State agencies to access such data for criminal investigative purposes. The Heads of 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, which found that many features of the 2011 Act are precluded by EU law. The Irish High Court also recently held, in Dwyer v Commissioner of An Garda Siochána [2018] IEHC 685; [2019] IEHC 48, that certain sections of the 2011 act are incompatible with EU law.


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The EDPB has published its first review of the implementation of the GDPR, in particular the functioning of the cooperation and consistency mechanism. The GDPR requires EU Data Protection Supervisory Authorities (SAs) to cooperate in order to provide a consistent application of the GDPR. The EDPB concludes that nine months after the entry into force of the GDPR, the cooperation and consistency mechanism is working well. All one-stop-shop cases have so far been resolved smoothly, with no cross-border case being escalated to the EDPB for dispute resolution purposes.

To support the cooperation and consistency mechanism, the EDPB have customised an existing IT system, the Internal Market Information System (IMI), in order to provide a structured and confidential way for SAs to share information.

Some of the highlights of the review are set out below.


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The European Data Protection Board (EDPB) has adopted an Opinion on the interplay of the e-Privacy Directive 2002/58 with the GDPR. The Opinion was adopted in response to a request made by the Belgian Data Protection Authority (DPA) to clarify: (i) the material scope of the e-Privacy Directive and the GDPR; (ii) the interplay of each set of rules and extent to which processing can be governed by both; (iii) the competence, tasks and powers of EU DPAs, and (iv) the applicability of the cooperation and consistency mechanism by DPAs in relation to processing that triggers both sets of rules.  The EDPB’s Opinion is without prejudice to the outcome of the current negotiations concerning the proposed e-Privacy Regulation. We have set out below some of the highlights of the Opinion.

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The Advocate General of the Court of Justice of the EU (CJEU) has delivered an Opinion in the Planet49 case (Case C-673/17), finding that a pre-ticked checkbox giving consent for cookies does not constitute valid consent under the e-Privacy Directive 2002/58 read in conjunction with the Data Protection Directive 95/46 or the GDPR.

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The Data Protection Commission (DPC) has published its Annual Report for 25 May-31 December 2018. As always, the Report reveals some interesting statistics and case studies. In the coming months, the DPC expects to conclude a number of statutory inquiries, which it launched in 2018, into multinational technology companies with EU headquarters situated in Ireland. The DPC anticipates that the conclusion of those inquiries will provide precedents for better implementation of the principles of the GDPR across key aspects of internet and ad tech services. This briefing note sets out some of the highlights of the Report.
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On 4 March 2019, Minister Richard Bruton TD announced that he will introduce an Online Safety Act to regulate harmful content online and ensure children are safe online.  The Act will also implement the revised Audiovisual Media Services (AVMS) Directive (which Member States are required to implement by 19 September 2020).  The Minister stated that the era of self-regulation in regard to online safety is over.  It is proposed that an Online Safety Commissioner would oversee the new system. The Department of Communications, Climate Action and Environment is seeking views on the proposed legislation, and has launched a six-week consultation period which is open until 15 April 2019.

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The Data Protection Commission (DPC) has published the results of the annual Global Privacy Sweep for 2018, which examined how well organisations are implementing the concept of accountability.  The Global Privacy Enforcement Network members made contact with 356 organisations in 18 countries during the Sweep. It found that while there were examples of good practice reported, a number of organisations had no processes in place to deal with complaints and queries raised by data subjects, and were not equipped to handle data security incidents appropriately.

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By any measure, 2018 was a historic year for data protection law with the coming into effect of the GDPR on 25 May 2018.  Ireland plays an important role in the regulation and enforcement of data protection law and decisions of the Irish courts have had a disproportionate impact on European data protection jurisprudence. With

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The EDPB has published information notes on Data Transfers under the GDPR in the Event of a No-Deal Brexit, and on BCRs for Companies Which Have ICO as BCR Lead Supervisory Authority to help organisations prepare for a no-deal Brexit. The information notes build on guidance already issued by the UK ICO and Irish Data Protection Commission (discussed here).

The Information Note on Data Transfers warns that, in the event of a no-deal Brexit, the UK will be a ‘third country’ from 30 March 2019. As a result, personal data cannot be transferred from the EEA to the UK unless organisations implement a data transfer mechanism under the GDPR, such as standard contractual clauses; ad hoc contractual clauses; binding corporate rules (BCRs); codes of conduct and certification mechanisms, or a derogation. In regard to data transfers from the UK to the EEA, the UK Government have confirmed the current practice, which permits personal data to flow freely from the UK to the EEA, will continue in the event of a no-deal Brexit.


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The European Data Protection Board (EDPB) has published its work program for the next two years. The program lists the guidelines, consistency opinions, and other types of activities the EDPB intends to carry out. The program is based on the needs identified by the EDPB as priority for individuals, stakeholders, as well as the EU legislator planned activities. The Guidelines due to be published over the coming two years include:

  • Guidelines on reliance on Art. 6(1) b in the context of online services (i.e. the contractual necessity legal basis)
  • Guidelines on concepts of controller and processor (Update of the WP29 Opinion)
  • Guidelines on the notion of legitimate interest of the data controller (Update of the WP29 Opinion)
  • Guidelines on the Territorial Scope of the GDPR (finalisation after the public consultation)


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