Ireland: Bloomberg BNA, Privacy And Security Law Report: Views On Data Protection Issues In Ireland From Rob Corbet

Last Updated: 28 April 2015
Article by Rob Corbet
Most Read Contributor in Ireland, December 2017

As the European Union home to many U.S. digital economy giants, such as Facebook Inc., Google Inc. and Apple Inc., Ireland plays an outsize data protection oversight role. Bloomberg BNA Privacy & Security Law Report Senior Legal Editor Donald G. Aplin posed a series of questions to Rob Corbet, partner and head of the Technology & Innovation practice at Arthur Cox in Dublin, about privacy and security issues in Ireland.

BLOOMBERG BNA: What is it about Ireland that makes U.S.-based tech and online giants like Facebook, Google and Apple—which recently announced that it would be spending $1 billion on a 1.7 million square foot data center near Athenry—want to locate their EU headquarters there?

Corbet: From a data perspective, we enjoy a positive reputation with U.S. companies who regard our data protection environment as a mature one in which regulators engage with companies to ensure meaningful compliance. Companies like Apple and Intel Corp. have been in Ireland for several decades, so there is also a fairly deep-rooted expertise within the Irish tech sector which pre-dates the decisions by Internet giants to locate in Ireland.

In addition, our competitive rate of corporation tax tends to draw most of the headlines, but I think it's important to say that many of the companies you mention have scaled their Irish presence for nontax reasons. For example, our U.S. clients speak very positively about the can-do nature of the Irish workforce and, as a country, we like to think we favor green lights over red tape. Ireland has been recognized by ''Forbes'' as one of the best countries in the world for ease of doing business, and we rank very highly internationally in terms of the availability of skilled labor, innovation and inward investment quality and value.

Although we remain enthusiastic members of the EU, the U.S. is our largest export trading partner so it's probably true to say that many Irish people feel closer to Boston than Berlin.

BLOOMBERG BNA: Do you think the Office of the Data Protection Commissioner of Ireland's privacy audit of Facebook Ireland in 2011 (11 PVLR 23, 1/2/12), and follow-up audit in 2012 (11 PVLR 1448, 9/24/12), established the standard for how the data protection author- ity makes use of its statutory authority in dealing with multinationals, and/or are there other powers at its disposal that you think are equally worth noting?

Corbet: The Facebook audits drew a lot of international attention to Ireland's data protection regime, and indeed, Facebook's data operations in Ireland remain the subject of much attention in the context of the current Court of Justice hearing around the integrity of the U.S.-EU Safe Harbor regime. The two audit reports provided a valuable insight into how in practical terms the Office of the Data Protection Commissioner was applying the EU Data Protection Directive principles in a rich data environment like Facebook.

However, I don't think it's fair to say that the Facebook audit established the ''standard'' as things are continually evolving. The initial audit report of Facebook dates back to 2011, which is an age in terms of the development of the digital economy. For example, since then we have seen the Snowden revelations, the socalled right to be forgotten decision, the European Court of Justice's declaration of invalidity of the Data Retention Directive and the appointment of a new data protection commissioner in Ireland. All of these developments directly impact companies like Facebook, so if another audit was to take place now one would expect there to be a different emphasis.

I should also say that contrary to some reports, the Office of the Data Protection Commissioner has extensive other powers under our domestic data protection legislation, including the power to ''dawn raid,'' to compel compliance using enforcement notices, to seek the destruction of data and to prosecute. The audit right is quite a powerful tool and one that does not exist in many other EU member states, which seem to equate enforcement solely with the ability to impose monetary fines.

BLOOMBERG BNA: Are there data protection compliance issues that mutinationals doing business in Ireland find the most challenging?

Corbet: I think the most frustrating aspect for U.S. clients is the lack of any genuine consistency or predictability across the EU marketplace in terms of how data protection rules are interpreted and applied. When the proposed EU data protection regulation (General Data Protection Regulation) was first published in January 2012, one of the big selling points was the ''one-stopshop'' mechanism, which was intended to reduce the unpredictability of operating across EU borders. Regrettably however, the negotiations around the regulation seem to be slowly driving towards a fudged version of the one stop shop , which seems unlikely to address the original concern.

On the positive side, multinational clients comment favorably on the Irish Office of the Data Protection Commissioner's willingness to pro-actively engage with them in relation to their privacy programs. This seems to distinguish Ireland from other EU markets, where relationships with data protection supervisory authorities seem to be predicated on a level of adversity.

BLOOMBERG BNA: How does Ireland's interesting sort of activist role before the ECJ on some of the larger data protection issues in the EU—from the group Digital Rights Ireland's successful challenge to the EU Data Retention Directive (2006/24/EC) (13 PVLR 660, 4/14/14) to the High Court of Ireland's decision to refer questions about the adequacy of privacy protections for data transfers under the U.S.-EU Safe Harbor Program (13 PVLR 1093, 6/23/14)—comport with the country's general business friendly reputation?

Corbet: The concept of ''business friendly'' should not be confused with any lack of awareness or concern about privacy issues. Irish people are highly concerned about their privacy, and our 1937 Constitution has provided for a right to privacy that pre-dates any data protection directives or indeed Ireland's transposition of the European Convention on Human Rights.

The concept of ''business friendly'' should not be confused with any lack of awareness or concern about privacy issues.

More generally, the Irish system provides a very wide level of access to justice. Civil liberties and other advocacy groups are active in Ireland, and there has been a marked increase in privacy-related litigation in recent years. For example, it is increasingly common for lawyers or individual lay litigants to argue data protection and privacy issues before the courts, and the likes of Digital Rights Ireland also play an important role in ensuring that the courts have the chance to opine on privacy issues. Under our common law system, the jurisprudence continues to grow both domestically and from the ECJ. For example, in the past couple of years the Irish courts have looked at data protection and privacy issues in all manner of contexts, from music piracy to bankruptcy proceedings to CCTV on public transport.

BLOOMBERG BNA: The Irish government gave qualified support to Microsoft Corp. in litigation now before U.S. Court of Appeals for the Second Circuit over whether the U.S. government can force Microsoft to turn over user e-mail data located on servers in Ireland (13 PVLR 2162, 12/22/14). What might the implications be for Ireland, and for multinationals doing business there, of an appeals court ruling against Microsoft?

Corbet: The Microsoft warrant case is hugely significant as it goes to the heart of national sovereignty.

The truth is that the U.S. government has an existing mechanism for reaching into foreign servers in the context of criminal investigations. The Mutual Legal Assistance Treaty (MLAT) offers an internationally recognized process to allow U.S. authorities to seek the assistance of the Irish authorities in obtaining evidence located in Ireland, which is required for the purposes of U.S. law enforcement.

It does not sit well with Irish corporations, Irish lawyers or Irish citizens that the U.S. government might seek to ignore the MLAT process in favor of its own domestic warrant processes. I don't think anyone would argue that the U.S. courts and U.S. government would comply with a domestic Irish court order if the roles were reversed?

BLOOMBERG BNA: Before Billy Hawkes left as head of Ireland's data protection commission, he said Ireland was ready to take a leadership role in carrying out the proposed data protection regulation to replace the 20- year-old EU Data Protection Directive (95/46/EC), but not in terms of meting out large fines as a matter of course (13 PVLR 187, 1/27/14). How do you think Ireland is viewed within the EU in matters related to the data privacy regime reform effort and as a data protection regulator?

Corbet: On a professional level I find it deeply frustrating that much of the negative commentary about Ireland's approach to the data protection regulation goes unchallenged. As I mentioned earlier, equating monetary fines with a positive compliance culture makes no sense. Many fines are dished out by EU supervisory authorities with little prior consultation or engagement, and I sometimes wonder if there must be a prize at the Article 29 Working Party meetings for the supervisory authority that gets the most headlines for issuing fines.

The reality of the approach in Ireland is that it is more focused on effecting real compliance by engaging with the companies, initially through proactive discussion and, where necessary, using the amicable resolution process to resolving complaints as set out in our legislation. We are not big on bureaucracy, but if amicable resolution is not possible, the Office of the Data Protection Commissioner is not slow to escalate through the hierarchy of enforcement powers set out in our acts.

The new Irish Data Protection Commissioner, Helen Dixon, has also been promised considerable additional resources to improve the technical competence of her office in dealing with emerging technologies. That reflects a broader governmental attitude that the regulation of the digital economy first requires an understanding of it. It also reflects the growing pull on the resources of that office, which is a consequence of Ireland's success in attracting foreign direct investment in the technology sector. Our U.S. clients have no fear of the Office of the Data Protection Commissioner being provided with additional resources. Their bigger fear is the current unpredictability and inconsistency in the EU's regulatory regime.

BLOOMBERG BNA: Is it too early to assess whether Dixon, who has been in her position for just over six months now (13 PVLR 1612, 9/15/14), is continuing the general approach to enforcement of her predecessor Hawkes?

Corbet: It is immediately clear that Dixon is intent on bringing her own unique style and new priorities to the office. While Hawkes was admired for his diplomacy and his unfailing positivity, Dixon appears to be on a mission to modernize the office of the Office of the Data Protection Commissioner so as to ensure that Ireland offers a best-in-class regulatory regime for data subjects and the companies that serve them. Dixon also seems anxious to increase Ireland's role at the Article 29 subcommittees so as to ensure we have influence in key decisions and opinions that emerge from that forum.

She has undoubtedly mastered her brief in short order, and already she has established a reputation as someone of very high intellect with striking clarity of thought. She speaks regularly at public events where she does not shirk difficult issues (including around enforcement), while the feedback from companies and privacy practitioners who have interacted with her to date has been exceptionally positive. Her first annual report will issue in May, and that will give us a firmer indication of how her general approach might differ from that which has gone before.

Previously published in Privacy & Security Law Report, 14 PVLR 588 (Apr. 6, 2015). Copyright 2015 by The Bureau of National Affairs, Inc. (800-372-1033)

This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions