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Category: Digital Rights

Closing off the Warren of Negligence Claims for Data Breaches

1 February, 20248 February, 2024
| No Comments
| Cyberlaw, Cyberlaw, Data Protection, Digital Rights, Privacy, Privacy, Tort

Data and Private Law bookcoverI have just published “Closing off the Warren of Negligence Claims for Data Breaches” in Damian Clifford, Kwan Ho Lau & Jeannie Marie Paterson (editors) Data and Private Law (Hart Studies in Private Law, Bloomsbury, 2023) chapter 10; pp161-174 (available via SSRN). Here is the abstract:

Large databases of personal data are increasingly vulnerable to hacks. Arising out of the biggest data breach in the United Kingdom’s history, the claimant in Warren v DSG Retail Ltd [2021] EWHC 2168 (QB) (30 July 2021) sought damages for distress for breach of data protection legislation, misuse of private information, and breach of a duty of care in negligence. Saini J dismissed the negligence claim because there is neither need nor warrant to impose such a duty of care where there exists a bespoke statutory regime. But this is an incoherent policy, inconsistently applied. Moreover, it ought not to operate at all in cases where the defendant has voluntarily assumed responsibility towards the claimant. Nevertheless, after Warren, the tort of negligence provides no incentive for the controllers of large databases to protect them.

The cover of the book is above, right. It is very elegant. And this is one time where you really can judge the book by its cover.…

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The Great Hack and the dysaguria of Cambridge Analytica

24 July, 201919 August, 2019
| 3 Comments
| Digital Rights, Dysaguria, Media and Communications, Privacy

Great Hack poster via IMDBThe Great Hack has just dropped on Netflix (IMDB | Rotten Tomatoes | wikipedia | poster left). It is a documentary that explores “how a data company named Cambridge Analytica came to symbolize the dark side of social media in the wake of the 2016 US presidential election”. Much has already been written about the Cambridge Analytica scandal (eg ICO here and here (pdfs) | Carole Cadwalladr in The Guardian), and a great deal more will be written as the movie is reviewed in the coming days. I don’t propose to add to those torrents here. Rather, I simply want to observe that there is a word for a company that symbolizes the dark side of social media.

Reacting to Thomas More’s coinage of “utopia” as the “perfect state”, from the Greek “eu” meaning “good”, and “topos” meaning “place”, John Stuart Mill coined “dystopia” as the “frightening state”, from the Greek “dys” meaning “bad”, and (again) “topos” meaning “place”. But, whilst “dystopia” is perfect to describe a “frightening state” and its frightened society, it is not particularly apt to describe a “frightening company” and its frightened society. Indeed, we don’t really have the words for when a corporate society goes bad; “dystopia” and “dystopian” have been pressed into service (even in the context of reviewing The Great Hack: “Watching this film, you literally start to wonder if history has been warped towards a sickening dystopia”); but the warped society in that movie is very different to the warped society in classic dystopian fiction (such as, to take the obvious example, Orwell’s 1984).…

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Reality and Illusion in EU Data Transfer Regulation post-Schrems

29 September, 2016
| 1 Comment
| Conferences, Lectures, Papers and Workshops, Cyberlaw, Digital Rights, Privacy

Crhis KunerOn the first anniversary of the judgment of the Court of Justice of the European Union in Case C-362/14 Schrems, Professor Christopher Kuner (pictured left), Professor of Law at the Vrije Universiteit Brussels, will give a public lecture on

Reality and Illusion in EU Data Transfer Regulation post-Schrems

The lecture will be held in the Neill Theatre, Trinity Long Room Hub, Trinity College Dublin, on Thursday 6 October 2016, at 1:00pm.

In Case C-362/14 Schrems v Data Protection Commissioner [2015] ECR I-nyr (Grand Chamber, 6 October 2015), the Court of Justice of the European Union invalidated the EU-US Safe Harbour arrangement allowing personal data to be transferred to the US. The judgment is a landmark in the Court’s data protection case law, and illustrates the tension between the high level of legal protection for data transfers in EU law and the illusion of protection in practice. The judgment has undermined the logical consistency of the other legal bases for data transfer besides the Safe Harbour, and reactions to it have largely been based on formalism or data localization measures that are unlikely to provide real protection. Schrems also illustrates how many legal disagreements concerning data transfers are essentially political arguments in disguise.…

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Some forthcoming legislation on the administration of justice, cybercrime, education, intellectual property, and privacy

28 September, 201629 September, 2016
| 4 Comments
| Blasphemy, Copyright, Cyberlaw, Digital Rights, ECJ, Intellectual property, Judicial Appointments, Legal Education, Privacy, Universities

Government Chief Whip Regina Doherty has announced the Government’s Legislation Programme for the Autumn Session 2016 (pdf). It is a considerable update of the programme published last June (pdf) when the government came into office.

The June programme had the feel of a holding document, published to get a new government to the Summer Recess. This programme has a far more substantial feel about, published to demonstrate the government’s confidence in its capacity to promote and enact legislation.

After the publication of the June programme, I examined proposed legislation from the Department of Education and Skills (here; and see also here), the Department of Jobs, Enterprise and Innovation (here; and see also here and here), and the Department of Justice and Equality (here and here). Under those headings, very little has changed. But there are some notable additions, not least of which is the Interception of Postal Packets and Telecommunications Messages (Regulation) (Amendment) Bill. All we are told is that work is underway on a Bill to “amend various pieces of legislation in respect of electronic communications”. There is no further explanation. This is probably the Bill to provide for further covert surveillance of electronic communications promised by the Minister earlier this Summer.…

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The Ethics of Security and Surveillance Technologies

15 January, 201522 January, 2015
| No Comments
| Conferences, Lectures, Papers and Workshops, Digital Rights, Privacy

987dcd49-c69f-48b5-a808-66e89bec0087
Professor Hille Haker will deliver a public lecture on

The Ethics of Security and Surveillance Technologies

in the Trinity Long Room Hub, on Thursday 22 January 2015, at 18:30. In this public lecture, organised by the Confederal School of Religions, Peace Studies and Theology at Trinity College Dublin, and the Ethics and Privacy Working Group of the ADAPT centre at TCD, Prof Haker will outline her thoughts on the ethics of surveillance technologies. In particular, she will address the key questions:

Security and freedom: do we need both?
And can we enjoy both without the pursuit of one jeopardising the other?


Prof Haker is a member of the European Group on Ethics in Science and New Technologies (EGE), which advises the European Commission on ethical issues. On 20 May 2014, the EGE submitted to the Commission their Opinion no 28 on “Ethics of Information and Communication Technologies”. In an era where rapid advances in telecommunications and computing have enabled the data of billions of citizens around the globe to be tracked and scrutinized on an unprecedented scale, the Opinion aims to provide a reference point for the Commission regarding the ethics of security and surveillance measures.

Building upon the Opinion, in this lecture, Prof Haker considers the tensions between security and freedom.…

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Pornography, cyberbullying, and internet regulation

30 July, 20138 October, 2013
| No Comments
| Censorship, Cyberlaw, Digital Rights

TheJournal.ie PollThe image, left, shows the result of a poll on TheJournal.ie which ran last Tuesday: the question was whether Ireland follow the UK’s lead in blocking online porn? And the results show a slight majority (54%) against doing so. This comes in the wake of proposals from UK Prime Minister David Cameron to compel internet service providers to block pornographic material by default.

To the age old question “will no-one please think of the children?“, Cameron (perhaps rather cynically) rushes to answer: “I will”:

I want Britain to be the best place to raise a family. … Where children are allowed to be children. … Protecting the most vulnerable in our society; protecting innocence; protecting childhood itself. … I will do whatever it takes to keep our children safe.

Predictably, there were calls for similar Irish developments. The Minister for Communications, Energy and Natural Resources, Pat Rabbitte, has blown cold then hot then cold again on the issue. Writing in TheJournal.ie, Ashley Balbirnie, Chief Executive of the Irish Society for the Prevention of Cruelty to Children (the ISPCC), is very critical of Rabbitte’s vacillation, and makes the case for following Cameron’s lead:

… viewing graphic and violent pornographic material online is extremely harmful to children and we believe strongly that introducing such filters in Ireland is an option worth at least some serious consideration.

…

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YouTube, Facebook, and the responsibilities of intermediary gatekeepers

18 September, 201217 April, 2016
| 4 Comments
| Censorship, Cyberlaw, Digital Rights, Freedom of Expression, judges, law school

YouTube logo, via YouTubeIn my previous post, I argued that, as a matter of principle, the controversial American anti-Islamic video should not be censored. The most obvious form of censorship comes from government action, such as legislation banning speech, but that does not arise in this case. Less obvious, but no less insidious, was the White House request to Google to re-consider whether the video breached YouTube rules. This was not a formal ban, and Google declined to take the video down in the US, but it did block access to it in in Egypt and Libya. This raises two important questions about the structure of free speech. First, in the online world, where most of us access the internet through a range of intermediaries, government censorship does not necessarily need to target the disfavoured speech; it need only target the intermediaries. Very few US companies would feel able to decline a request like that from the White House, and Google are to be commended for standing firm in those circumstances. Second, these intermediaries now have a great deal of practical power over online expression – not only can they be co-opted by government as agents of state censorship, but they also have the capacity to act as censors in their own rights, as Google did in their unilateral action to block access in the Middle East.…

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Government Launches Consultation on New Data Protection Law Proposal : Ireland IP & Technology Law Blog

12 March, 20121 March, 2013
| No Comments
| Digital Rights, Privacy

The Minister for Justice and Equality has this week launched a consultation process on the European Commission’s proposal for a new Regulation on data protection standards within the EU.

via irelandip.com
…

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Hi there! Thanks for dropping by. I’m Eoin O’Dell, and this is my blog: Cearta.ie – the Irish for rights.


“Cearta” really is the Irish word for rights, so the title provides a good sense of the scope of this blog.

In general, I write here about private law, free speech, and cyber law; and, in particular, I write about Irish law and education policy.


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