EMI Records (Ireland) Ltd and Others v Data Protection Commissioner

JudgeMr. Justice Clarke
Judgment Date03 July 2013
Neutral Citation[2013] IESC 34
CourtSupreme Court
Date03 July 2013
EMI Records (Irl) Ltd & Ors v Data Protection Cmsr & Eircom Ltd
EMI Records (Ireland) Limited, Sony Music Entertainment Ireland Limited, Universal Music (Ireland) Limited and Warner Music Ireland Limited
Applicants / Respondents


The Data Protection Commissioner
Respondent / Appellant


Eircom Limited
Notice Party

[2013] IESC 34

Fennelly J.

O'Donnell J.

Clarke J.

[Appeal No. 369/12]




Alternative remedy not availed of - Statutory appeal - Adequacy of alternative remedy - Conditional right of appeal - Whether exception to general rule - Duty to give reasons - Statutory duty to give reasons - No reasons in decision - Whether duty to give reasons satisfied - Whether reasons obvious from process leading up to decision - Intellectual property - Copyright - Data protection - Infringement of copyright by unknown internet subscribers - Applicants notifying notice party of breach of copyright - Notice party terminating internet service of subscribers repeatedly breaching copyright - Respondent directing notice party to cease scheme with applicants - Notice party entitled to appeal direction of respondent - Whether reasons provided by respondent - Whether respondent obliged to provide reasons - Whether applicants entitled to seek certiorari of respondent's direction - Privacy - Right to privacy - Illegal downloading and uploading of copyright material - Whether internet subscribers engaging in copyright infringement having right to privacy - Factors when considering whether to grant injunctive relief to prevent infringement of copyright online - Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (SABAM) v Netlog NV (Case C-360/10) (Unrep, ECJ, 16/2/2012); Bonnier Audio AB v Perfect Communication Sweden AB (Case C-461/10) (Unrep, ECJ, 19/4/2012); Christian v Dublin City Council [2012] IEHC 163, [2012] 2 IR 506; Davitt v Minister for Justice (Unrep, Barron J, 8/2/1989); Douglas v Hello! Ltd [2001] QB 967; Dramatico v BSkyB [2012] EWHC 268 (Ch), [2012] IP & T 772; Dudgeon v United Kingdom (App No 7525/76) (1981) 4 EHRR 149; Dunne v. Minister for Fisheries [1984] IR 230; Efe v Minister for Justice [2011] IEHC 214, [2011] 2 IR 798; he Employment Equality Bill 1996 [1997] 2 IR 321; EMI Records (Ireland) Ltd v Eircom Ltd [2010] IEHC 108, [2010] 4 IR 349; EMI Records (Ireland) Ltd v UPC Communications Ireland Ltd [2010] IEHC 377, (Unrep, Charleton J, 11/10/2010); Frank Harrington Ltd. v An Bord Pleanála [2010] IEHC 428, (Unrep, Hedigan J, 23/11/2010); Golden Eye (International) Ltd v Telefonica UK Ltd [2012] EWHC 723 (Ch), [2012] RPC 698; Henry Denny & Sons (Ireland) Ltd v Minister for Social Welfare [1998] 1 IR 34; Kennedy v Ireland [1987] IR 587; Killilea v Information Commissioner [2003] 2 IR 402; Koczan v Financial Services Ombudsman [2010] IEHC 407, (Unrep, Hogan J, 1/11/2010); L'Oréal SA v eBay International AG (Case C-324/09) [2011] ECR I-6011; LSG-Gesellschaft zur Wahrnehmung von Leistungsschutzrechten GmbH v Tele2 Telecommunication GmbH (Case C-557/07) [2009] ECR I-1227; SM v Ireland [2007] IESC 11, [2007] 3 IR 283; Mallak v Minister for Justice [2012] IESC 59, [2012] 3 IR 297; McGee v Attorney General [1974] IR 284; McGoldrick v An Bord Pleanála [1997] 1 IR 497; Meadows v Minister for Justice [2010] IESC 3, [2010] 2 IR 701; Mulholland v An Bord Pleanála (No 2) [2005] IEHC 306, [2006] 1 IR 453; O'Connor v Private Residential Tenancies Board [2008] IEHC 205, (Unrep, Hedigan J, 25/6/2008); O'Donoghue v An Bord Pleanála [1991] ILRM 750; Philadelphia Storage Battery Co v Controller of Industrial and Commercial Property [1935] IR 575; Productores de Música de Espana (Promusicae) v Telefonica de Espana SAU (Case C-275/06) [2008] ECR I-271; Rawson v Minister for Defence [2012] IESC 26, (Unrep, SC, 1/5/2012); Roadshow Films Pty Ltd v iiNet Ltd [2012] HCA 16; Scarlet Extended SA v Société belge des auteurs, compositeurs et éditeurs SCRL (SABAM) (Case C-70/10) [2011] ECR I-11959; Square Capital Ltd. v Financial Services Ombudsman [2009] IEHC 407, [2010] 2 IR 514; The State (Abenglen Properties) v Corporation of Dublin [1984] IR 381; The State (Philpott) v Registrar of Titles [1986] ILRM 499; State (Sweeney) v Minister for Environment [1979] ILRM 35; Stefan v Minister for Justice [2001] 4 IR 203; Teahan v Minister for Communications [2008] IEHC 194, (Unrep, Laffoy J, 18/6/2008); Twentieth Century Fox v BT [2011] EWHC 1981 (Ch), [2012] 1 All ER 806; Twentieth Century Fox v Newzbin [2010] EWHC 608 (Ch), [2010] IP & T 1122 and X v Flynn (Unrep, Costello J, 19/5/1994) considered - European Communities (Electronic Communications Networks and Services) (Privacy and Electronic Communications) Regulations 2011 (SI 336/2011) - Data Protection Act 1988 (No 25), s 10 - Copyright and Related Rights Act 2000 (No. 28) - Communications Regulation Act 2002 (No 20) - Data Protection (Amendment) Act 2003 (No 6) - Constitution of Ireland 1937, Article 40.3 - Directives 2000/31/EC, 2001/29/EC, 2002/21/EC, 2002/58/EC and 2004/48/EC - European Convention on Human Rights and Fundamental Freedoms, articles 8 & 10 - Enforcement notice quashed by High Court; Appeal dismissed by Supreme Court (2012/167JR & 369/2012 - Charleton J & SC - 27/6/2012 & 3/7/2013) [2012] IEHC 264 & [2013] IESC 34

EMI Records (Ireland) Ltd v Data Protection Commissioner

Facts: The respondents were music record companies that had brought proceedings against Eircom Limited, the notice party, for facilitating the unlawful sharing of copyright material through its internet service. The case was eventually settled between the parties but the Data Protection Commissioner, the appellant, then raised the possibility that implementation of certain terms of the settlement could amount to a breach of data protection law. The respondents and notice party applied to the court for a ruling on this issue where it was determined that the settlement would not breach the relevant law. As a result, the appellant issued an Enforcement Notice to the notice party under the provisions of the Data Protection Act 1988. The respondents issued judicial review proceedings, which resulted in the Enforcement Notice being successfully quashed. The appellant launched an appeal of that decision which gave rise to these proceedings before the Supreme Court.

During the judicial review proceedings, the respondents case that the appellant had failed to provide any reasons for the issue of the Enforcement Notice in breach of s. 10(4)(a) of the Data Protection Acts had been upheld. It was the appellant"s view before the Supreme Court that the judicial review proceedings were inappropriately brought as the more applicable remedy of a statutory appeal of the Enforcement Notice by the notice party (which had in fact been launched, but not concluded, prior to the judicial review proceedings) was available. It was further argued that the judicial review decision was flawed in ruling that the lack of reasons within the Enforcement Notice justified it being quashed.

Held by Clarke J. (with Fennelly J. and O"Donnell J. concurring) that where a party wished to challenge an initial decision of a public body, the standard position was that a party should pursue a statutory appeal where available rather than initiate judicial review proceedings. However, it was determined that there would be cases where a party should not be confined to that approach so as to ensure justice was properly served, and which would include circumstances where an appeal would not allow a party to adequately outline their complaint.

In considering the present case, it was noted that the notice party had initiated a statutory appeal against the Enforcement Notice, which the respondents had initially sought to be joined to. However, it was held that even if the application had been formally made, they could have been refused. As the Enforcement Notice had been directed at the notice party solely, it was held that in the absence of the respondent having a statutory right to full involvement in the appeal, the above principle did not apply to the respondents and they were therefore fully entitled to bring judicial review proceedings.

In regards to the appellant"s argument that the reasoning behind the Enforcement Notice was inherently obvious, it was held that the respondents were entitled to sufficient information that would allow it to assess whether the decision was lawful and to adequately present an appeal if necessary. It was further held that the respondents should not have had any reasonable doubts as to the rationale behind the decision and where the basis of this rationale could be found. It was determined that the judicial review court had correctly indicated that no reasons were provided in the Enforcement Notice. With that in mind, it was held that the Supreme Court was not satisfied that the applicant had discharged its obligations to the respondents and that the reasons behind the Enforcement Notice would have been inherently obvious due to the process and previous interventions of the appellant. Even if the reasons could be inferred, the court was not satisfied that this would have been sufficient when s. 10(4)(a) of the Data Protection Acts expressly provided that reasons should be included with the Enforcement Notice.

Appeal dismissed.

EEC DIR 2009/140






STEFAN v MIN FOR JUSTICE & ORS 2001 4 IR 203 2002 2 ILRM 134 2001/23/6290


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