Ireland: ICLG Guide To Data Protection 2017

1 Relevant Legislation and Competent Authorities

1.1 What is the principal data protection legislation?

The principal data protection legislation in Ireland is the Data Protection Act 1988, as amended by the Data Protection (Amendment) Act 2003 (together, the "DPA") which transpose, among others, European Directive 95/46/EC (the "EU Data Protection Directive") into Irish law.

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

The following legislation also impacts data protection:

  • The Freedom of Information Act 2014, which provides 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 him/her.
  • The Protected Disclosures Act 2014 (the "Whistleblowers Act"), which provides a general suite of employment protections and legal immunities to whistle-blowers who raise a concern regarding wrongdoings in the workplace and may be at risk of penalisation as a result.
  • Criminal Justice (Mutual Assistance) Act 2008, Part 3, which enables Ireland to provide or seek various forms of mutual legal assistance to or from foreign law enforcement agencies.
  • S.I. No. 337 of 2014 Data Protection Act 1988 (Commencement) Order 2014, which brought into force section 6(2)(b) and 10(7)(b) of the Data Protection Act 1988 and expands the notice requirements of a data controller.
  • S.I. No. 338 of 2014 Data Protection (Amendment) Act 2003 (Commencement) Order 2014, which brought into force section 5(d) of the Data Protection (Amendment) Act, 2003 and 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.

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

The following sector-specific legislation impacts data protection:

  • S.I. No. 81/1989 – Data Protection Act, 1988 (Restriction of Section 4) Regulations 1989, which restrict the right of access to information on adopted children and information which the Public Service Ombudsman acquires during an investigation.
  • S.I. No. 82/1989 – Data Protection (Access Modification) (Health) Regulations 1989, which outline certain restrictions in the right of access relating to health data.
  • S.I. No. 83/1989 – Data Protection (Access Modification) (Social Work) Regulations 1989, which outline specific restrictions in respect of social work data.
  • S.I. No. 95/1993 – Data Protection Act 1988 (Section 5 (1) (D)) (Specification) Regulations 1993, which provide the exemption from the DPA in respect of the use of personal data in the performance of certain functions of the Central Bank of Ireland, the National Consumer Agency, various functions performed by auditors under the Companies Act 2014, etc.
  • S.I. No. 687/2007 – Data Protection (Processing of Genetic Data) Regulations 2007, which outline restrictions in respect of processing genetic data in relation to employment.
  • S.I. No. 421/2009 – Data Protection Act 1988 (Section 5(1) (D)) (Specification) Regulations 2009, which outline the exemption from the DPA in respect 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. 336/2011 – The European Communities (Electronic Communications Networks and Services) (Privacy and Electronic Communications) Regulations 2011 ("E-Privacy Regulations"), which implemented Directive 2002/58/EC, as amended by Directive 2006/24/EC and Directive 2009/136/ EC, and deal with specific data protection issues relating to use of electronic communication devices, and particularly direct marketing restrictions.

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

The Office of the Data Protection Commissioner ("ODPC") is the data protection regulatory authority who is responsible for ensuring that individuals' data protection rights are respected. In 2014, Helen Dixon was appointed as the Data Protection Commissioner (the "DPC") by the Irish government, succeeding Billy Hawkes. The DPC is independent in the exercise of her functions and has powers to enforce the provisions of the DPA (including powers of investigation, entry and examination).

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"

Personal data relating 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"

Of, or in relation to, information or data, and 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"

A person who, either alone or with others, controls the content and use of personal data.

"Data Processor"

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 Subject"

An individual who is the subject of personal data.

Other key definitions – please specify (e.g., "Pseudonymous Data", "Direct Personal Data", "Indirect Personal Data")

There is no definition of "Pseudonymous Data", "Direct Personal Data" and "Indirect Personal Data" in Irish law. The EU Data Protection Regulation (the "GDPR") which will apply from 25 May 2018, broadens the scope of the definition of "personal data".

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, including where the data are indirectly obtained by the controller (i.e., from a third party).

The information to be provided 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;
  3. any other information that is required to render the processing fair, having regard to the specific circumstances in which data are to be processed, and 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; and
  4. where data are indirectly obtained, the categories of data and the identity of the original controller.

Lawful basis for processing

(A) Non-sensitive personal data:

The legitimate processing grounds for non-sensitive personal data include the following:

  1. specific, freely given and informed consent of the data subject;
  2. confirmation that 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 non-contractual legal obligation to which the data controller is subject;
    4. to prevent injury or other damage to the health of the data subject or 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 or under an enactment;
      3. for the performance of a function of the government or a minister of the government; or
      4. for the performance of any other function of a public nature which is performed in the public interest; or
    6. for the purposes of the legitimate interests pursued by the data controller (or third party to whom the personal data are disclosed), provided there is no unwarranted prejudice to the data subject.

(B) Sensitive personal data:

The legitimate processing grounds for sensitive personal data are more narrowly drawn, but include explicit consent of the data subject, processing which is necessary for exercising or performing legal rights and obligations of the controller in connection with employment, protection of vital interests, the administration of justice and for performing functions conferred by enactment or which are Government functions.

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 those purposes.

Data minimisation

The volume of personal data collected should not be excessive and be limited to what is directly relevant and necessary to accomplish a specific purpose.

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 ceases and the personal information is no longer required, the personal data must be deleted or disposed of in a secure manner.

  • Other key principles – please specify

The following key principles are also relevant:

Data security

See question 13.1.

Data transfers

Personal data must not be transferred from Ireland to a jurisdiction that is outside the EEA unless the country ensures an adequate level of data protection and/or at least one of a number of conditions permitting such a transfer is satisfied. See question 8.1 for further information relating to the conditions of transfer.

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, free of charge, to be informed if a data controller holds personal data about them. This includes the right to be given a description of the personal data and to be told the purposes for which their personal data are being held. A request for this information must be made in writing by the data subject and the data controller must provide the information within 21 days pursuant to the DPA.

Section 4 of the DPA provides that data subjects have the right to obtain a copy of the personal data which relates to them that is held either on a computer or in a structured manual filing system or that is intended to form part of such a system. The data controller is given 40 days to provide a copy of the personal data to which the data subject is entitled and may charge a fee not exceeding €6.35.

There are, however, exceptions to the right of access and the DPA sets out specific circumstances when a data subject's right of access to their personal data held by a data controller 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; or
  4. hinder the assessment or collection of any taxes or duties.

Certain personal data are also exempt from disclosure in certain circumstances if the information is:

  1. protected by legal privilege;
  2. back-up data;
  3. 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;
  4. an opinion on the data subject, given in confidence (in practice, this exemption is rarely relied upon);
  5. used to prevent, detect or investigate offences, or will be used in the apprehension or prosecution of offenders; or
  6. an estimate of damages or compensation regarding a claim against the data controller where disclosure is likely to cause damage to the data controller.

If a request would either be disproportionately difficult or impossible to process, the data controller or processor does not have to fulfil the request.

Exemptions also apply in respect of access to social work data, and 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 the data subject to whom it relates. Data controllers and data processors who are healthcare providers must consult with the individual doctor before they disclose health data.

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 are not obtained lawfully or where it is inaccurate. The data controller or processor must respond within a reasonable amount of time and no later than 40 days after receipt of the request. There is no express right, however, for a data subject to have their personal data deleted, provided it is processed fairly in accordance with the DPA.

Objection to processing

Under section 6A of the DPA, data subjects have the right to object to processing which is likely to cause unwarranted damage or distress. This right applies where processing of the relevant personal data is necessary for the purpose of a legitimate interest pursued by the data controller to whom the personal data is, or will be disclosed or processing 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, following a request in writing, to require the data controller to cease processing data for direct marketing purposes. In situations where it is only retained for that purpose, they have the right to have the data erased which must be actioned by the data controller within 40 days. Under Regulations 13 and 14 of the E-Privacy Regulations, data subjects have the right to have their "opt-out" preference, which constitutes an objection to direct marketing to them, recorded in the National Directory Database (the "NDD").

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'.

Other key rights – please specify

  • Automated decision making

Data subjects have the right to object to decisions that have a legal or (other significant) effect on them which is based solely on processing of data which is intended to evaluate certain aspects of a person by automated means.

  • Right to be forgotten

As a result of the Google Spain case in 2014, data subjects may have a 'right to be forgotten' in certain circumstances. While the DPC is yet to issue guidance on this, individuals can request that their data be erased where there is a problem with the underlying legality of the processing or where they withdraw their consent. The GDPR imposes a duty on the data controller to erase the relevant data or be subject to substantial fines for failure to comply.

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