The UK’s Data Protection Bill 2017: repeals and compensation – updated

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| GDPR, Privacy

UK Data Protection image, via UK gov websiteIn the UK, the Department of Digital, Culture, Media and Sport (DCMS) has today published the Data Protection Bill 2017, to incorporate the General Data Protection Regulation (GDPR) and to implement the Police and Criminal Justice Authorities Directive (PCJAD) (respectively: Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC; and Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA; aka the Law Enforcement Directive). The progress of the Bill through Parliament can be tracked here.

In Ireland, when the Department of Justice published the the General Scheme of the Data Protection Bill 2017 (scheme (pdf)), I expressed two concerns, both of which are equally applicable to the UK Bill.…

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Compensation for breach of the General Data Protection Regulation

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| GDPR, General, Privacy

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.

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What is the current status of GDPR incorporation in the EU’s 28 Member States? [Ongoing updates]

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| GDPR, Privacy

Last updated: 7 May 2018

GDPR incorporationHaving looked, in my previous post, at what Article 82(1) of the General Data Protection Regulation says and means in each of the EU’s 24 official languages, I’m interested in this post in the related question of the current status of incorporation* of the GDPR in each of the EU’s 28 Member States. I am interested in particular in whether provision has been made in any incorporating* legislation or draft for an express claim for compensation or damages to give effect to Article 82 GDPR. The list below is the current state of play so far as I have been able to find out. I would be grateful if you correct any errors and help me fill in the blanks – via the comments below, via email, or via the contact page on this blog – I would very grateful indeed.

Complete incorporation: Legislation to incorporate* the GDPR has been enacted in Austria, Belgium (though a further Bill is pending), Germany, Poland, Slovakia and Slovenia (a French Act anticipated some of its requirements, though a full incorporation Bill is pending). About half of the Member States are likely to complete the process before 25 May 2018.…

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What is the literal meaning of Article 82(1) GDPR in each of the EU’s 24 official languages?

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| GDPR, Privacy

GDPRI’m trying to work out what Article 82(1) of the General Data Protection Regulation (Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC) says and means in each of the 24 official languages of the EU institutions, and I’d be very grateful for your help. In English, Article 82(1) GDPR provides

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 I have said before on this blog (here, here, here), I think that this formulation is rather odd. It does not provide, in the present tense, that a person whose rights have been infringed “has” the right to receive compensation. Instead, it provides, in a much more congtingent fashion, that a plaintiff “shall have” such a right, which seems to imply that there is something more to be done in national law before plaintiffs actually have the claim.…

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Orders against social networks to identify anonymous posters of defamatory content (Muwema v Facebook part 3)

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| Defamation

Uganda Facebook Ireland 2Fred Muwema is a prominent lawyer in Uganda, who claimed that various Facebook pages in the name of Tom Voltaire Okwalinga, or TVO, defamed him. In Muwema v Facebook Ireland Ltd [(No 1)] [2016] IEHC 519 (23 August 2016), Binchy J declined to grant injunctions requiring Facebook either to remove the posts from the account or to prevent the material in them from being re-posted, and I considered these holdings in one of my earlier posts on the case (also here). However, Binchy J did grant an order requiring Facebook to identify TVO, and I considered this aspect of the case in another of my earlier posts on the case (also here). This was not a difficult issue, as the defendant had consented to the order. However, before the order could be perfected, the defendant sought the leave of the Court to introduce new evidence with a view to opposing the making of the order. In Muwema v Facebook Ireland Ltd (No 2) [2017] IEHC 69 (08 February 2017), Binchy J allowed the new evidence to be introduced; and, having considered it, he declined to make the order after all. It is to that aspect of the case that this post is directed.…

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Social media, open justice, and contempt of court

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| Contempt of Court, contempt of court, Freedom of Expression, Open Justice

Social Media iconsI have a short op-ed in today’s Irish Independent, on the topic of contempt of court by social media, pointing out that there’s a fine line between commenting on and prejudicing a trial (registration required).

Here’s a rather longer version, with a few relevant links:

The law on contempt applies equally to all media, offline and online

Social media coverage of criminal trials raises profound constitutional issues, and may hasten legislation on contempt of court

Justice shall be administered in public, according to Article 34.1 of the Constitution. The full glare of a public hearing enables everyone to know that justice is being administered fairly, and impartially, and according to the evidence. It allows the press and the public to report on, to scrutinise, and to comment upon, the workings of the law.

Every person facing a criminal charge is entitled to a fair trial, according to Article 38 of the Constitution. So commentary that gives rise to a substantial risk either of serious prejudice to, or of prejudgment of, an active trial, can amount to contempt of court. This can be dealt with either by the judge during the trial itself (by charging the jury to ignore the comments, or penalising the commentator, or – in rare and extreme cases – stopping the trial, or some combination of these), or by a case taken by the Director of Public Prosecutions against the commentator after the trial.…

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Damages for Breach of the GDPR

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| GDPR, Privacy

Data Summit 2017 LogoTwo weeks ago today I was chatting over coffee with a data protection expert during the second day of the Data Summit 2017. He was annoyed at my blogpost on the Government’s General Scheme of the Data Protection Bill 2017 [the Scheme] to give further effect in Irish law to the EU’s General Data Protection Regulation [the GDPR]. Article 82(1) GDPR provides claim for compensation for anyone whose rights under the GDPR are infringed. In the post that annoyed him so much, I said that I couldn’t find a Head to this effect in the Government’s Scheme. He said: what about Head 91? I said: that’s where it should be, but it isn’t there. He wasn’t convinced. So, I went back and had a closer look at the Scheme and the GDPR. I also had a look at an associated Directive (the Police and Criminal Justice Authorities Directive [the PCJAD]) which is also being transposed by the Scheme. Article 56 PCJAD similarly provides for a claim for compensation for anyone whose rights under the PCJAD are infringed. Heads 91 and 58 (respectively) of the Scheme address these claims, but they do not completely provide for such claims for compensation.…

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Tory Island and Unjust Enrichment – a sad story ends not with a bang but a whimper

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| Restitution

BaidinWhen I was in school, I learned a song in Irish called Báidin Fheilimí. It’s about Phelim’s boat, sailing to islands off Donegal, in the north-west of Ireland. In the first verse, it sails to Gola Island; in the second, it sails to Tory Island; and, in the third, the lively little boat is wrecked on the rocks off Tory. The song left a romantic image of Tory in my mind. Neville Presho probably had a similar image; but, like Phelim’s boat, it has been wrecked on Tory rocks. He had a holiday home on the island. Until, one day, he returned to the island, and found that the house was gone, replaced by car park for an adjacent hotel. I have, on this blog, been following his action against the hotel (see here, here, here, here). In Presho v Doohan [2009] IEHC 619 (17 July 2009), Murphy J held that the appropriate remedy lay not in reinstatement of the demolished house “but in the provision of a comparable dwelling on Tory Island or the open market value of a comparable dwelling on the island”. He later held that this amounted to €46,000.…

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