Category: General

Compensation for breach of the General Data Protection Regulation

I have just posted a paper on SSRN entitled “Compensation for breach of the General Data Protection Regulation”; this is the abstract:

Article 82(1) of the General Data Protection Regulation (GDPR) provides that any “person who has suffered material or non-material damage as a result of an infringement of this Regulation shall have the right to receive compensation from the controller or processor for the damage suffered”. As a consequence, compliance with the GDPR is ensured through a mutually reinforcing combination of public and private enforcement that blends public fines with private damages.

After the introduction, the second part of this article compares and contrasts Article 82(1) GDPR with compensation provisions in other EU Regulations and Directives and with the caselaw of the CJEU on those provisions, and compares and contrasts the English version of Article 82(1) GDPR with the versions of that Article in the other official languages of the EU, and concludes that at least 5 of the versions of Article 82(1) GDPR are unnecessarily ambiguous, though the CJEU (eventually, if and when it is asked) is likely to afford it a consistent broad interpretation. However, the safest course of action at this stage is to provide expressly for a claim for compensation in national law. The third part of this article compares and contrasts the compensation provisions in the Irish government’s General Scheme of the Data Protection Bill 2017 with existing legislation and case-law in Ireland and the UK, and with incorporating legislation and Bills in other EU Member States, and concludes that the Heads of the Scheme do not give full effect to Article 82(1) GDPR. Amendments to the Scheme are therefore proposed.

To ensure that any person who has suffered such damage has an effective remedy pursuant to Article 47 CFR, Member States will have to provide, pursuant to Article 19 TEU, remedies sufficient to ensure effective legal protection in the fields of privacy and data protection. In particular, they will have to provide expressly for a claim for compensation, incorporating Article 82(1) GDPR into national law. Claims for compensation are an important part of the enforcement architecture of the GDPR. Private enforcement will help to discourage infringements of the rights of data subjects; it will make a significant contribution to the protection of privacy and data protection rights in the European Union; and it will help to ensure that the great promise of the GDPR is fully realised.

As I was working on this paper, I published several posts on this blog (here | here | here) including discussions of the literal meaning of Article 82(1) GDPR in each of the EU’s 24 official languages and the current status of GDPR incorporation in the EU’s 28 Member States. Thanks to everyone who has engaged with these posts – the analysis in my paper has improved immeasurably. All comments on the current version gratefully received.

Implications of Brexit, North and South

Ire,UK,EuThe Irish Council for Civil Liberties (ICCL) seminar on the Constitutional and Human Rights Implications of BREXIT, North and South this evening at 5:00pm in the Distillery Building, Church Street, Dublin 7 (map via here). It’s something I’ve blogged about here, here, here and here. Since then, the UK Supreme Court has handed down its judgment in R (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 (24 January 2017). I wrote an OpEd on the case in the Irish Times the following day. (more…)

Today is World Intellectual Property Day

WIPO IP days posterEvery April 26, the World Intellectual Property Organisation (WIPO) celebrates World Intellectual Property Day to learn about the role that intellectual property rights play in encouraging innovation and creativity:

This year, we are exploring the future of culture in the digital age: how we create it, how we access it, how we finance it. We will look into how a balanced and flexible intellectual property system helps ensure that those working in the creative sector and artists themselves are properly paid for their work, so they can keep creating.

To mark the day, Adapt Centre in Trinity is hosting an event on Technology, Freedom and Privacy in the 21st Century.

Intellectual property (IP) refers to creations of the mind for which the law affords exclusive protection. This legal protection can be provided by legislation (as in the case of patents, copyright, trademarks, and design rights) or at common law (as in the case of passing off, or the protection of trade secrets and other confidential information). Patents [main Irish Act here] largely protect inventions, and the ongoing disputes in courts all over the world between Apple and Samsung illustrate the centrality of patents to modern businesses. They are so important, in fact, that section 32 of the Finance Act 2015 (the 2015 Budget) a patent box, a special tax regime for IP revenues, to encourage research and development, innovation and invention. But patents can be pushed too far, if a patent troll acquires large bundles of patents, and then seeks to enforce them far beyond their original scope.

Copyright [main Irish Act here] largely protects expressions in the form of original literary, dramatic, musical, artistic and other related works. The central premise from which copyright law has developed is that it is the potential reward provided by copyright that encourages the art, movie, music, programming and writing. In that sense, copyright law fosters and protects innovation. Moreover, copyright provides rights-holders legal protection for the artistic integrity of their works. Nevertheless, both of these justifications look not only to the rights-holder, but also to the public benefit of the work: the State affords copyright protection to rights-holders because a diverse range of work is for the public benefit or the common good; and the appropriate reward afforded to the rights-holder is not an end in itself, but rather the means to this diversity, competition and innovation. Ongoing reform processes in Ireland and the EU are designed to calibrate this balance more precisely, the better to meet the challenges posed by the digital world.

A trademark [main Irish Act here; consolidated here (pdf)] is a recognizable sign which identifies products or services of a particular source, and distinguishes them from those of others. In 2007, Apple Inc finally settled its long-running trademark dispute with The Beatles’ company, Apple Corps Ltd, in a deal that paved the way for Beatles’ music to be sold on iTunes. But the three decades of dispute pale into insignificance before the more-than-a-century-long dispute between Budweiser in the US and Budejovicky Budvar in the Czech republic, which has been fought out in courts in more than a 100 countries worldwide since 1907! In Ireland, the not-quite-so-long-running trademark dispute involving the Northern Ireland Tayto Group (entirely separate from the Republic of Ireland Group) has recently ended up in the Court of Justice of the European Union.

Design rights [main Irish Act here] protect the shape of a three-dimensional design. These rights prevent Dunnes Stores from copying the design of a Karen Millen dress A recent decision of the UK Supreme Court considered the extent of the design right protecting the Trunki ride-on suitcase for kids, holding that its design was not infringed by the not-similar-enough design of the Kiddee Case.

Passing off is a common law cause of action, which protects the goodwill of a trader from a misrepresentation that goods or services of another are connected it. It ensures that any vendor of lemon juice in a lemon-shaped container must make it clear to the ultimate purchaser that it is not Jif lemon in its famous lemon-shaped container, that Brennan’s bakeries cannot copying the packaging of McCambridge’s brown bread, and that Tophop cannot sell tee-shirts bearing Rhianna’s image without her consent.

Finally, the law relating to breach of confidence protects trade secrets. The classic case of breach of confidence involves the claimant’s confidential information, such as a trade secret, being used inconsistently with its confidential nature by a defendant, who received it in circumstances where she had agreed, or ought to have appreciated, that it was confidential.

Plainly, there is much to celebrate – so, happy World IP Day to all my readers.

David Bowie – Memory Of A Free Festival


… We touched the very soul
Of holding each and every life
We claimed the very source of joy ran through
It didn’t, but it seemed that way …

Bonus links for lawyers: For a brief period in 1968, as a day job while he was still David Jones, Bowie was a paralegal – essentially making photocopies – based near Lincoln’s Inn in London, at the litigation support (and now ediscovery) bureau Legastat.

March, that month of wind and taxes

Homer Simpson and Ogden NashIndoors or out, no one relaxes
In March, that month of wind and taxes,
The wind will presently disappear,
The taxes last us all the year.

Thar She Blows“, from Versus (1949) by Ogden Nash



In England, Lady Day – the Feast of the Annunciation of the Blessed Virgin Mary on 25 March – was the traditional New Year’s Day. Taxes for the year, due at the end of the year, were therefore due on 24 March. In 1752, when Chesterfield’s Act, 1750 (facsimile here) moved England from the Julian Calendar to the Gregorian Calendar (170 years after it had been promulgated), 1 January became New Year’s Day. At that stage, the two calendars differed by 11 days, so Wednesday 2 September 1752 was followed by Thursday 14 September 1752. However, although the calendar year moved, by virtue of section 6 of the Act, the tax year did not; and, as a consequence:

from 1753 until 1799, the tax year in Britain continued to operate on the Julian calendar and began on 5 April, which was the “old style” new tax year of 25 March. A 12th skipped Julian leap day in 1800 changed its start to 6 April. It was not changed when a 13th Julian leap day was skipped in 1900, so the tax year in the United Kingdom still begins on 6 April.

Hence, in the UK, where the tax year in the UK runs from 6 April in one year to 5 April the next, accountants and tax advisors are busy during March, that month of taxes, preparing the early April returns. In Ireland, we also used the year ending 5 April until 2001 when it was changed to match the calendar year, and the Budget moved from March to December (the 2001 tax year was nine months, from April to December). And, earlier this month, it was announced that the Budget would move back again, from December to October, so that it can be submitted to the European Commission for scrutiny to ensure that it complies with the EU law – though it does not look as though this will have any impact on the calendar fiscal year.

In the US, tax returns are due on 15 April, while 30 April is tax day in Canada (in Canada, it’s the anniversary of the controversial Meech Lake Accord of 1987; in many European countries, it’s Walpurgis Night). This makes April a more appropriate month of taxes than March, but to cavil with Ogden Nash runs the risk of being taken as seriously as Babbage often is for his correction of Tennyson; and in any event, Nash is right that, whatever month they’re due, the taxes last us all the year.

The US Tax Foundation calculates the day of the year the nation as a whole has earned enough money to pay off its total tax bill for the year, and designates that day as tax freedom day . In the US, it usually falls in April each year. In the UK, it usually falls in May. In Canada, it usually falls in June. I’d hate to think what the equivalent date in Ireland is this year (in 2008, it was 30 March; in 2010, it was 27 April; but it will be much much later this year). In any event, whatever tax freedom day falls, Nash is still right: the taxes last us all the year.

Data Protection and European Developments: a German View

Heinrich Wolff, via the IIIS websiteThe Irish Society of Comparative Law, in conjunction with the School of Law, Trinity College, and the Institute for International Integration Studies in Trinity College Dublin, is hosting a public lecture entitled:

Data Protection and European Developments: a German View

by Professor Heinrich Wolff (pictured left), Professor for Public Law at the Europa-Universität Viadrina Frankfurt (Oder) and Visiting Fellow at the Institute for International Integration Studies in Trinity College Dublin.

The event will be chaired by Mr Paul Lambert, of Merrion Legal Solicitors and NUIG, author of Data Protection Law in Ireland (Clarus Press, 2013); and it will take place at 7pm, on Wednesday 20 March 2013, in the IIIS Seminar Room, 6th Floor Arts Building (map here), Trinity College Dublin.

The theme of this timely lecture is data protection and European developments from a German perspective; and it will be divided into parts:

– the basics of the data protection law,
– a description of European data protection and its reform, and
– an evaluation of the reform from the German perspective.

This event is free and all are very welcome to attend. Annual membership of the Irish Society for Comparative Law is available for €50. If you have any queries or to register your interest, please email Dr Niamh Connolly (TCD) ISCL Secretary.

Irish Law Journal, volume 2

Irish Law Journal logoLate to this, with apologies, I am told that the Irish Law Journal is still (just about) accepting submissions (email here) for its second edition. Submissions should be no more then 25,000 words in length, on any matter of law. According to its submissions page:

The Irish Law Journal strives to publish novel scholarship that will have an immediate and lasting impact on the legal community in Ireland and abroad. We invite articles from academics, professionals and students of law or related disciplines. Case comments and book reviews will also be accepted. While each issue might have articles focused on Irish law, the journal’s remit is international and we welcome submissions on all areas of the law irrespective of national boundaries.

I think that this is an excellent endeavour, adding to the range of journals available in Ireland. They largely fall into two parts: student run for student publication, and more professional or academic for professional or academic publication. The Irish Law Journal crosses this divide: it is student-run and student-edited, but seeking to publish professional and academic pieces. Not only will such a journal publish valuable new legal research, it will also help in the development of law students.

They would prefer submissions in the LegalCitation.ie OSCOLA format (though, that said, if a good piece is submitted in the benighted BlueBook format, I am sure they would consider it). I blogged about the journal when it was first launched, and I understand that volume 1 is now available on HeinOnline, and will soon be available both on Westlaw.IE and LexisNexis; and volume 2 will be as well in due course. So, go ahead, make a submission.

Men of letters

Campanile, Front Square, TCDTwo letters in the Irish Times can speak for themselves.




This is the first:

Sir, – I read that Trinity College Dublin plans to pilot a radical new approach where student interviews, personal statements and teacher references are used for college entry to law, starting in 2014, (Home News, August 21st).

While Trinity College has always enjoyed imitating the Oxbridge universities, this development should concern all citizens who value equality and indeed equality of access.

Whatever one may say about the CAO system, it is not open to the type of manipulation that I am certain will happen once the ridiculous “personal statement, teacher references, etc” are included in the entry selection process.

Clearly the thin end of the wedge, this development should be seen in the context of the introduction of the HPat exam, namely another attempt by the professional classes to reduce competition for college places for their privately schooled sons and daughters.

As Winston Churchill might have said, the CAO points systems is the worst system for college entrance, except for all the other entry systems that have been tried from time to time. Shameful. – Yours, etc,

CATHAL O’SULLIVAN,

Leinster Road, West,
Rathmines,
Dublin 6.

This is the second:

Sir, – Further to Cathal O’Sullivan’s recent letter (August 24th), I would like to reassure your readers that my colleagues and I at Trinity Law School are acutely aware of the challenges involved in attempting to formulate an alternative university entry system to the existing CAO route.

In particular, we have always been conscious of the importance of securing social diversity among our students and, indeed, in 1992 were the first academic unit in Trinity (and possibly further afield) to introduce a quota for students from disadvantaged schools. I have every confidence that these concerns will continue to guide us as we engage with the college authorities in relation to the proposed new pilot admission scheme. – Yours, etc,

GERRY WHYTE,
Law School,
Trinity College Dublin.