The Data Protection Commissioner (DPC) has published her Annual Report for 2017, which discusses the key activities and challenges of her office last year, as well as her priorities for the coming year. The DPC spent much of 2017 raising awareness of the GDPR. She continued to engage with organisations in regard to their data protection law compliance, carrying out over 200 consultations and 100 face-to-face meetings in which preparation for the GDPR was a constant feature. The DPC dealt with a record number of complaints (2,642), most of which were resolved amicably. She was also busy on the litigation front, particularly in regard to court proceedings concerning the validity of the EU Standard Contractual clauses as a legal mechanism to transfer personal data out of the EEA.
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.
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.
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.
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.
In Susquehanna International Group Ltd v Needham  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.
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.
The EU Court of Justice (CJEU) has ruled that a supplier of luxury goods can, by contract, prohibit its authorised distributors from selling those goods on third-party internet platforms such as Amazon. The CJEU held that such a prohibition is appropriate; does not in principle go beyond what is necessary to preserve the luxury image of the goods; and is not necessarily an unlawful restriction of competition (Coty Germany GmbH v Parfümerie Akzente GmbH (Case C-230/16)).
The EU Court of Justice (CJEU) has ruled that a candidate’s exam script is “personal data”, as it constitutes information that is linked to him or her. The CJEU held that the use of the expression “any information” in the definition of the concept of personal data in the Data Protection Directive 95/46/EC (the Directive) reflects the aim of the EU legislature to assign a wide scope to the concept, potentially encompassing all kinds of information provided that it relates to the data subject. As the GDPR contains a similar definition of “personal data” to that in the Directive, namely “any information relating to an identified or identifiable natural person”, the CJEU’s broad interpretation of the concept of personal data will continue to apply post-25 May 2018 when the GDPR comes into force.
The Article 29 Working Party (WP29) has published Guidelines on Administrative Fines. While the GDPR gives national supervisory authorities discretion in deciding which corrective measure to impose and if a fine, the level of that fine, the guidelines emphasise the need for supervisory authorities across the EU to work together to achieve consistent enforcement of the data protection rules. The WP29 recommends the creation of a sub-group attached to the European Data Protection Board to support this ongoing activity.