Data Matters: Data Protection Issues

• Author: Marie Quirke
• Position: Judge of the District Court
• Pages: 46-59

IRISH JUDICIAL STUDIES JOURNAL

46

[2022] Irish Judicial Studies Journal Vol 6(2)

46

DATA MATTERS: DATA PROTECTION ISSUES

Authors: Judge Marie Quirke, judge of the District Court.*

Abstract: This article explores the range of issues judges may find themselves dealing with following the

enactment of the Data Protection Act 2018 (itself implementing Regulation (EU) 2016/679 – The

General Data Protection Regulation). These issues include a new cause of civil action, changes to civil

procedure, the role the Circuit Court plays in hearing appeals of decisions of the Data Protection

Commission and the role that the Circuit Court plays in sanctioning administrative measures taken by

the Data Protection Commission.

Introduction

The legal landscape as it relates to Data Protection Law has changed drastically since the

enactment of Regulation (EU) 2016/679 (‘the GDPR’) and the corresponding domestic

legislation, the Data Protection Act 2018 (‘the 2018 Act’), which gives effect to the GDPR.

This landscape is not dissimilar to the hills of Donegal in that there are many and several

manifestations. If viewed together, the hills and aspects of Data Protection law may blend

together seamlessly, but each hill will possess its own twists, turns and challenges.

The GDPR became law by way of direct effect on 25 May 2018 and, in tandem with this, the

2018 Act was enacted on 24 May 2018 with most provisions being commenced on 25 May

2018 via the Data Protection Act 2018 (Commencement) Order 2018 (S.I. No. 174 of 2018).

Parts 5 and 6 of the 2018 Act also incorporate Directive (EU) 2016/680 (‘the Law

Enforcement Directive’) which sets out how data is to be processed by authorities/data

controllers who are competent for the prevention, investigation, detection or prosecution of

criminal activities or execution of criminal penalties, where personal data is being processed

for these purposes. The application of the Law Enforcement Directive is outside the scope

of this paper.

Personal Data – A Primer

In order to fully consider the impact of the 2018 Act and the GDPR on the business of the

Circuit Court, it is worth exploring the concept of personal data. In 2006, British

mathematician and architect of the Tesco Clubcard, Clive Humby pronounced that ‘data is

the new oil’. While this particular analogy may have some attraction when considering the

monetisation of personal information by commercial entities, it is somewhat of a flawed

analogy. Sholtz notes that the analogy fails to properly encompass the moral, legal and

personal aspects of personal data.

1

It is submitted that a more useful analogy is to compare

the large-scale storage and use of personal data to that of the nuclear industry in that if poorly

handled, the resultant leaks and externalised costs can be catastrophic.

2

The GDPR provides a very broad definition of ‘personal data’ in Article 4(1): ‘Any

information relating to an identified or identifiable natural person’

* With thanks to Robert Brophy BL of the Research Support Office of the Courts Service

1

Lauren Scholz, ‘Big Data is Not Big Oil: The Role of Analogy in the Law of New Tec hnologies’ (2020) 85

Tennessee Law Review.

2

Cory Doctorow, ‘Personal data is as hot as nuclear waste’ (The Guardian 15 January 2008 ).