Ireland: GDPR: Judicial Remedies

Introduction

With less than a year to the introduction of the General Data Protection Regulation (EU) 2016/679 (the "GDPR") it is important to consider the potential consequences for data controllers and data processors in the event of a breach. The GDPR envisages both administrative sanctions and judicial remedies which can be brought side by side. Where a data subject alleges that there has been a breach of the GDPR which has caused the data subject damage, either material or nonmaterial, he or she can lodge a complaint with the relevant supervisory authority within a member state and there is also a right to seek compensation from the data controller or data processor for the damage suffered. For a fuller discussion on administrative sanctions see our linked article.

Ireland's Data Protection Bill

The General Scheme of Data Protection Bill (the "Bill") proposed by the Irish Government provides for a specific cause of action known as a 'data protection action' to be brought by way of court proceedings.

Liability

The GDPR provides that a data controller shall be liable for both material and non-material damage caused to a data subject as a result of data processing which infringes the GDPR. Data processors will be liable where the damage is caused by a breach of a specific obligation imposed on data processors under the GDPR or where the data processor has acted contrary to instructions received from a data controller.

In terms of avoiding liability, the GDPR provides that a data controller or data processor will need to prove that it is not responsible for the event giving rise to the damage. Where multiple data controllers / data processors have a liability, the principle of joint and several liability will apply. This means that the claimant can recover the entire compensation awarded from any one of the liable parties regardless of the parties' individual share of the liability. The party who pays the entire compensation can separately seek to recover from the other parties who are liable.

Types of Damage

Material damage is generally straightforward and quantifiable. However, of more concern is the right under the GDPR of a data subject to be compensated for non-material damage suffered as a result of an infringement of the GDPR. No definition has been provided for what amounts to non-material damage and it remains to be seen whether any guidance will be given by the European Data Protection Board. At present, it would appear to equate to what are known in Ireland as general damages in personal injuries actions being damages which are for pain and suffering and are not readily quantifiable. This is a significant exposure for a defendant in a judicial action and will likely involve an increase in the costs of such actions due to the need to engage experts to provide guidance where non-material damage is claimed.

Under current Irish law, in order for a claimant to be compensated for a breach of his or her data protection rights, the claimant must establish that a data controller / data processor owes him or her a duty of care and has breached that duty which has resulted in damage to the claimant. The Irish courts have found that a claimant is not entitled to compensation for non-pecuniary loss1 being a loss which is not readily quantified such as damages for pain and suffering which appears to equate to non-material damage.

Jurisdiction

The Bill has proposed that the Circuit Court and High Court only will have jurisdiction to hear a data protection action in the first instance. The District Court hears actions where the quantum of damages claimed is up to €15,000 for personal injuries actions with the Circuit Court hearing actions ranging from €15,000 to €60,000 and the High Court hearing claims above €60,000.

It is concerning that the District Court does not have jurisdiction to hear proposed data protection actions under the Bill and it poses a further exposure given the increase in the costs of an action in the Circuit Court in comparison to the District Court.

Representative Actions

A final point of note is that the GDPR provides for a not-for-profit body, organisation or association bringing an action on behalf of a data subject. Current Irish law does not provide for class actions and prohibits litigation funding2 . Therefore, it will remain to be seen whether enacted Irish legislation will allow a not-for-profit body, organisation or association to bring a multi-party action whereby the claims of a number of claimants are brought within the same set of proceedings. In any event, the right of a data subject to engage a not-for-profit body, organisation or association to bring an action on his or her behalf will allow those who may be otherwise deterred from bringing an action (due to the potential cost implications of a finding against them) to bring a claim. Although the entity that brings the action on behalf of a data subject is to be a not-for-profit body, organisation or association, this right may amount to a derogation from the law of maintenance and champerty depending on how such an entity is funded in bringing the action.

Conclusion

It is too early at this stage to predict how exactly the provisions in the GDPR relating to data protection actions will play out. Data controllers and data processors can, however, anticipate that their exposure in the event of a breach will increase, not only as a result of the fines which can be imposed on them, but also because of the scope for an award in respect of non-material damage.

Footnotes

1 See Collins v FBD Insurance Plc [2013] IEHC 137
2 See The Regulation of Crowdfunding in Ireland and Supreme Court Rules against Litigation Funding in Ireland in Persona Judgment

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.

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

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

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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