I t is hard to believe that 8 months have already passed since the text of the General Data Protection Regulation ('GDPR') was finally agreed. While all eyes are on 25th May 2018 and the commencement of the GDPR, data protection developments continued apace throughout the year on multiple fronts. As the year draws to a close, we look back on some of the most significant developments in 2016.
The Court of Justice of the European Union ('CJEU') invalidated the Safe Harbor regime in its judgment on 6th October 2015. However, the ramifications of the decision rolled on throughout 2016 and will continue well into 2017 and beyond.
While the Privacy Shield was finally agreed in February, it was July before it was approved by EU Member States. Inevitably, by October, proceedings had already been lodged by Digital Rights Ireland with the General Court of the European Union – the lower court of the Court of Justice – seeking an application under Article 263 of the Lisbon Treaty for an annulment of the Privacy Shield decision. The first annual review of Privacy Shield by the European Commission, the Federal Trade Commission and the US Department of Commerce is due to take place in mid-2017.
In July 2016, the High Court hearing in the case of the Data Protection Commissioner v Schrems & Facebook kicked off with several amicus curiae ('friends of the Court', or additional parties) seeking to be admitted to the proceedings. At the heart of the case is whether or not the Standard Contractual Clauses approved by the EU Commission should be invalidated for the same reasons that the Safe Harbor perished. The High Court trial is scheduled for February 2017 and it is largely expected to lead to another referral to the CJEU later in the year.
In January 2016, Digital Rights Ireland reported that it had instructed its lawyers to serve legal papers on the Irish government, challenging whether the Office of the Irish Data Protection Commissioner was truly an independent data protection authority under EU law. It was reported that proceedings were eventually served in October.
While the ODPC is not a party to those proceedings, there was no shortage of other litigation during the year. In January, April and November, the ODPC brought prosecutions against several companies for various SMS and email marketing offences under the e-Privacy Regulations. In May, the Nowak v DPC case was referred to the CJEU by the Supreme Court to determine whether handwritten examination text constitutes 'personal data'.
In June 2016, a private investigator was convicted for illegally obtaining data from the Department of Social Protection and passing it to insurance companies and a bank. Again in October, another private investigator pleaded guilty to breaches of Irish data protection law after admitting to obtaining access to personal information held by the Department of Social Protection while he was employed by a firm of solicitors acting on behalf of two banks.
In August 2016, the decision of Martin v DPC held that people who believe they have suffered a breach of their data privacy rights have no entitlement to an oral hearing when they complain to the DPC.
Other ODPC activity
Outside of the Court room, the ODPC has had a busy time.
In January 2016, the Office announced an audit of Garda access to phone records, and in March unsolicited calls/ SMS/emails by politicians were under scrutiny. In April, CCTV footage of illegal dumpers was in the news, whilst the Annual Report in June 2016 highlighted a broad array of areas which took up the ODPC's ever-increasing resources in the course of the previous year. Speaking of resources, the October budget allocated an additional funding of €2.8 million for the ODPC, bringing the total funding allocation to over €7.5 million, a four-fold increase since 2014. There has been a very noticeable increase in the recruitment by the ODPC of senior specialist staff, as the office prepares for the introduction of its new enforcement powers under the GDPR.
The ODPC participated in a global privacy sweep investigation of 300 'Internet of Things' devices, and reported in October that it had found 'alarming shortfalls in the management of personal data by developers and suppliers'. Data security in IOT is sure to be a hot topic in 2017.
As the year draws to a close, the ODPC confirmed that it is examining various issues relating to Yahoo, Facebook and WhatsApp. The ODPC's first published guidance on the GDPR was published on 30th November (see further on page 1) and guidance on location data was published in August (see Volume 9, Issue 5, page 1).
Another significant development which may occur before the end of the year will be the publication of a Data Protection Bill, setting out how Ireland intends to legislate for those aspects of the GDPR which require adoption at Member State level. Notably, the first GDPR consultation was on digital age of consent for children and this closed on 2nd December. This issue and other aspects of the GDPR will fall to be dealt with in the draft Bill which will be watched with interest. Separately, legislation is being prepared for the implementation of the Police and Criminal Justice Authorities Directive (2016/681/EU) while the Criminal Justice (Offences Relating to Information Systems) Bill 2016 will implement the Cybercrime Directive (2013/40/EU) once enacted.
In July 2016, the EU formally adopted the Network and Information Security Directive (2016/1148) which is required to be transposed in Ireland by May 2018 and will require regulation of cybersecurity in the finance, energy, transport, health, water distribution and digital sectors. The deadline for submissions on that Bill was 9th December 2016.
The above gives just a flavour of the vast array of data protection developments over the past 12 months or so. All the signs are that 2017 will be another lively year.
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.