Ireland: The International Comparative Legal Guide To: Data Protection 2015

1 RELEVANT LEGISLATION AND COMPETENT AUTHORITIES

1.1 What is the principal data protection legislation?

Data Protection Acts 1988 and 2003 ("DPA").

1.2 Is there any other general legislation that impacts data protection?

Freedom of Information Act 2014

This gives a legal right for persons to access information held by a body to which FOI legislation applies; to have official information relating to himself/herself amended where it is incomplete, incorrect or misleading; and to obtain reasons for decisions affecting himself/ herself.

The Protected Disclosures Act 2014 (the "Whistle-Blowers Act")

This has introduced legislation in relation to whistle-blowers in Ireland for the first time.

S.I. No. 541/2014 – Criminal Justice (Mutual Assistance) Act 2008 (Commencement) Order 2014

This enacts Part 3 of the Criminal Justice (Mutual Assistance) Act 2008 which provides for various forms of mutual legal assistance to foreign law enforcement agencies.

S.I. No. 658/2007 – Data Protection (Fees) Regulations 2007

This outlines the fee for registration and for prior checking.

S.I. No. 657/2007 – Data Protection Act 1988 (Section 16(1)) Regulations 2007

This outlines the organisations that will be required to register with the ODPC.

S.I. No. 83/1989 – Data Protection (Access Modification) (Social Work) Regulations, 1989

Outlines specific restrictions in respect of social work data.

S.I. No. 351/1988 – Data Protection (Registration) Regulations, 1988

This outlines the details that must be contained in forms for registration with the ODPC.

S.I. 350 of 1988 – Period of Registration

This outlines the period that registration lasts for (1 year).

S.I. No. 347/1988 – Data Protection (Fees) Regulations, 1988

The fee that an organisation may charge for an Access Request (€6.35) and the fee for a certified copy of a Register entry (€2.54).

1.3 Is there any sector specific legislation that impacts data protection?

S.I. No 337 of 2014 – Data Protection Act 1988 (Commencement) Order 2014 and S.I. No 338 of 2014 – Data Protection (Amendment) Act 2003 (Commencement) Order 2014

This makes it unlawful for employers to require employees or applicants for employment to make an access request seeking copies of personal data which is then made available to the employer or prospective employer. This provision also applies to any person who engages another person to provide a service.

S.I. No. 336/2011 – European Communities (Electronic Communications Networks and Services) (Privacy and Electronic Communications) Regulations 2011 ("E-Privacy Regulations")

This deals with specific data protection issues relating to use of electronic communication devices, and particularly with direct marketing restrictions.

S.I. No 421 of 2009 – Data Protection Act 1988 (Section 5(1)(D)) (Specification) Regulations 2009

This outlines the exemption from the DPA of the use of personal data in the performance of certain functions of the Director of Corporate Enforcement and inspectors appointed by the High Court or Director of Corporate Enforcement.

S.I. No. 687/2007 – Data Protection (Processing of Genetic Data) Regulations 2007

This outlines restrictions in respect of processing genetic data in relation to employment.

S.I. No. 95/1993 – Data Protection Act, 1988 (Section 5 (1) (D)) (Specification) Regulations, 1993

This outlines the exemption from the DPA of the use of personal data in the performance of certain functions of the Central Bank, the National Consumer Agency, various functions performed by auditors under the Companies Acts, etc.

S.I. No. 81/1989 – Data Protection Act, 1988 (Restriction of Section 4) Regulations, 1989

This outlines the restriction on the right of access to information on adopted children and information the Public Service Ombudsman gets during an investigation.

S.I. No. 82/1989 – Data Protection (Access Modification) (Health) Regulations, 1989

This outlines certain restrictions in the right of access relating to health data.

1.4 What is the relevant data protection regulatory authority(ies)?

The Office of the Data Protection Commissioner ("ODPC"). In 2014, Helen Dixon was appointed as the new Data Protection Commissioner, succeeding Billy Hawkes.

2 DEFINITIONS

2.1 Please provide the key definitions used in the relevant legislation:

  • "Personal Data"

    Data relating to a living individual who is or can be identified either from the data or from the data in conjunction with other information that is in, or is likely to come into, the possession of the data controller.
  • "Sensitive Personal Data"

    Means personal data as to:

    1. the racial or ethnic origin, the political opinions or the religious or philosophical beliefs of the data subject;
    2. whether the data subject is a member of a trade union;
    3. the physical or mental health or condition or sexual life of the data subject;
    4. the commission or alleged commission of any offence by the data subject; or
    5. any proceedings for an offence committed or alleged to have been committed by the data subject, the disposal of such proceedings or the sentence of any court in such proceedings.
  • "Processing"

    In relation to information or data, means performing any operation or set of operations on the information or data, whether or not by automatic means, including:

    1. obtaining, recording or keeping the information or data;
    2. collecting, organising, storing, altering or adapting the information or data;
    3. retrieving, consulting or using the information or data;
    4. disclosing the information or data by transmitting, disseminating or otherwise making it available; or
    5. aligning, combining, blocking, erasing or destroying the information or data.
  • "Data Controller"

    Means a person who, either alone or with others, controls the contents and use of personal data.
  • "Data Processor"

    Means a person who processes personal data on behalf of a data controller but does not include an employee of a data controller who processes such data in the course of his employment.
  • "Data Owner"

    No definition in Irish law.
  • "Data Subject"

    Means an individual who is the subject of personal data.
  • "Pseudonymous Data"

    No definition in Irish law.
  • "Direct Personal Data"

    No definition in Irish law.
  • "Indirect Personal Data"

    No definition in Irish law.

3 KEY PRINCIPLES

3.1 What are the key principles that apply to the processing of personal data?

  • Transparency

    Data subjects must be provided with information relating to the processing of their data. This includes:

    1. the identity of the data controller or their representative and/or the data processor;
    2. the purposes for which the data are intended to be processed; and
    3. any other information that is necessary, having regard to the specific circumstances in which data are to be processed, including but not limited to details of recipients or categories of recipients of the personal data and information as to the existence of the right of access and the right to rectify data.
  • Lawful basis for processing

    1. consent of the data subject (specific, freely given, informed);
    2. the processing is necessary:

      1. for the performance of a contract to which the data subject is a party;
      2. in order to take steps at the request of the data subject prior to entering into a contract;
      3. for compliance with a legal obligation to which the data controller is subject rather than an obligation imposed by contract;
      4. to prevent –

        1. injury or other damage to the health of the data subject;
        2. serious loss or damage to property of the data subject, or otherwise to protect his or her vital interests where the seeking of the consent of the data subject is likely to result in those interests being damaged;
      5. for compliance with a legal obligation including:

        1. the administration of justice;
        2. for the performance of a function conferred on a person by law;
        3. for the performance of a function of the government or a minister of the government;
        4. for the performance of any other function of a public nature which is performed in the public interest;
      6. for the purposes of the legitimate interests pursued by the data controller (or third party to whom the personal data are disclosed).
  • Purpose limitation

    Personal data should only be obtained for one or more specified, explicit and legitimate purposes and should not be further processed in a manner incompatible with that power or those purposes.
  • Data minimisation

    Personal data should not be kept for longer than is necessary for the purposes for which they were obtained.
  • Proportionality

    Personal data collected must be adequate, relevant and not excessive in relation to the purpose or purposes for which they are collected or are further processed.
  • Retention

    Personal data should not be kept for longer than is necessary for the purpose for which it was obtained.

    If the purpose for which the information was obtained has ceased and the personal information is no longer required, the data must be deleted or disposed of in a secure manner.
  • Other key principles

    Data security (covered in more detail in section 13 below).

4 INDIVIDUAL RIGHTS

4.1 What are the key rights that individuals have in relation to the processing of their personal data?

  • Access to data

    Under section 3 of the DPA, data subjects have the right to, free of charge, find out if an organisation or an individual holds information about them. This includes the right to be given a description of the information and to be told the purposes for which that information is held. A request for this information must be made in writing by the data subject and the individual must receive a reply within 21 days according to the DPA.

    Section 4 of the DPA provides that data subjects have the right to obtain a copy of any information which relates to them that is held either on a computer or in a structured manual filing system, or that is intended for such a system. A fee of €6.35 is required when a request is made under section 4 and the organisation or entity is given 40 days to reply to such a request.

    Exceptions to the right of access:

    The DPA set out specific circumstances when an individual's right of access to their personal information held by an organisation may be restricted.

    Disclosure is not required if the information would be likely to:

    1. hinder the purposes of anti-fraud functions;
    2. damage international relations;
    3. impair the security or order in a prison or detention facility;
    4. hinder the assessment or collection of any taxes or duties; or if
    5. disclosure of estimates of damages or compensation regarding a claim against the data controller is likely to cause damage to the data controller.
    Certain information is also exempt from disclosure if the information is:

    1. protected by legal privilege;
    2. used for historical, statistical or research purposes, where the information is not disclosed to anyone else, and where the results of such work are not made available in a form that identifies any of the individuals involved;
    3. an opinion given in confidence; or
    4. used to prevent, detect or investigate offences, or will be used in the apprehension or prosecution of offenders.
    If a request would be either disproportionately difficult or impossible to process, the data controller or processer does not have to fulfil the request.

    Exemptions also apply in respect of access to social work data; disclosure of such may be refused if it is likely to cause serious damage to the physical, mental or emotional condition of the data subject.

    A request for health data may also be refused if disclosure of the information is likely to seriously damage the physical or mental health of that data subject.
  • Correction and deletion

    Section 6 of the DPA provides data subjects with the right to request in writing to have their data either deleted or corrected, where the data is not obtained lawfully or is inaccurate. The data controller or processor must respond within a reasonable amount of time and no later than 40 days after the request. There is no express right of a data subject to request the deletion of their information if it is being processed lawfully.
  • Objection to processing

    Under Section 6A of the DPA, data subjects have the right to object to processing which is likely to cause damage or distress. This right applies to processing that is necessary for the purposes of legitimate interests pursued by the data controller to whom the personal data is, or will be disclosed, or processing that is necessary for the performance of a task carried out in the public interest or in the exercise of official authority.
  • Objection to marketing

    Under section 2.7 of the DPA, data subjects have the right to, following a request by writing, require the data controller to cease processing data for that purpose, and where it is only retained for that purpose they have the right to have it erased. The data controller must do this within 40 days.

    Under sections 13 and 14 of the E-Privacy Regulations, data subjects have the right to have their "opt-out" preference recorded in the National Directory Database, which constitutes an objection to direct marketing to them.
  • Complaint to relevant data protection authority(ies)

    Under Section 10 of the DPA, data subjects have a right of complaint to the ODPC in relation to the treatment of their personal data. The ODPC must investigate such complaints unless it considers them to be 'frivolous or vexatious'.

To read this Chapter in full, please click here.

This article appeared in the 2015 edition of The International Comparative Legal Guide to: Data Protection; published by Global Legal Group Ltd, London.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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