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

JurisdictionIreland
CourtSupreme Court
JudgeMr. Justice Clarke
Judgment Date03 July 2013
Neutral Citation[2013] IESC 34
Date03 July 2013

[2013] IESC 34

THE SUPREME COURT

Fennelly J.

O'Donnell J.

Clarke J.

[Appeal No. 369/12]
EMI Records (Irl) Ltd & Ors v Data Protection Cmsr & Eircom Ltd
Between:-
EMI Records (Ireland) Limited, Sony Music Entertainment Ireland Limited, Universal Music (Ireland) Limited and Warner Music Ireland Limited
Applicants / Respondents

and

The Data Protection Commissioner
Respondent / Appellant

and

Eircom Limited
Notice Party

EEC DIR 2009/140

EUROPEAN COMMUNITIES (ELECTRONIC COMMUNICATIONS NETWORKS & SERVICES) (PRIVACY & ELECTRONIC COMMUNICATIONS) REGS 2011 SI 336/2011

SCARLET EXTENDED SA v SOCIETE BELGE DES AUTEURS COMPOSITEURS ET EDITEURS SCRL (SABAM) 2012 ECDR 4 31 BHRC 558

DATA PROTECTION ACT 1988 S26

EMI RECORDS (IRL) LTD & ORS v DATA PROTECTION CMSR UNREP CHARLETON 27.6.2012 2012/14/3953 2012 IEHC 264

DATA PROTECTION ACT 1988 S10(4)(A)

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

MCGOLDRICK v BORD PLEANALA 1997 1 IR 497 1995/10/2825

ABENGLEN PROPERTIES LTD, STATE v DUBLIN CORP 1984 IR 381 1982 ILRM 590 1982/1/1

O'CONNOR v PRIVATE RESIDENTIAL TENANCIES BOARD UNREP HEDIGAN 25.6.2008 2008/48/10439 2008 IEHC 205

RESIDENTIAL TENANCIES ACT 2004 S123

KOCZAN v FINANCIAL SERVICES OMBUDSMAN UNREP HOGAN 1.11.2010 2010/26/6385 2010 IEHC 407

CCR O.60

CCR O.60 r6

DATA PROTECTION ACT 1988 S1

DATA PROTECTION ACT 1988 S26(3)

RESIDENTIAL TENANCIES ACT 2004 S123(3)

FREEDOM OF INFORMATION ACT 1997 S34

FREEDOM OF INFORMATION ACT 1997 S42(1)

NATIONAL VETTING BUREAU (CHILDREN & VULNERABLE PERSONS) ACT 2012 S18(8)

KILLILEA v INFORMATION CMSR 2003 2 IR 402 2003/29/6951

RESIDENTIAL TENANCIES ACT 2004 S123(1)

CCR O.6 r4

SWEENEY, STATE v MIN FOR ENVIRONMENT & LIMERICK CO COUNCIL 1979 ILRM 35 1979/2A/498

MEADOWS v MIN FOR JUSTICE & ORS 2010 2 IR 701 2011 2 ILRM 157 2010 IESC 3

RAWSON v MIN FOR DEFENCE UNREP SUPREME 1.5.2012 2012/40/11874 2012 IESC 26

CHRISTIAN & ORS v DUBLIN CITY COUNCIL 2012 2 IR 506 2012/6/1547 2012 IEHC 163

PLANNING & DEVELOPMENT ACT 2000

MALLAK v MIN FOR JUSTICE 2013 1 ILRM 73 2012/24/6926 2012 IESC 59

JUDICIAL REVIEW

Remedies

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...

To continue reading

Request your trial
67 cases
  • Student A.B. (A Minor) v The Board of Management of a Secondary School
    • Ireland
    • High Court
    • 17 April 2019
    ...of the principles in this regard is to be found in the judgment of the Supreme Court in EMI Records Ltd. v. Data Protection Commissioner [2013] IESC 34; [2013] 2 I.R. 669. Clarke J. (as he then was) stated at [41] that the overall approach is clear, and that the default position is that a ......
  • Akhtar v The Minister for Justice and Equality
    • Ireland
    • High Court
    • 6 June 2019
    ...[2012] IESC 26 (Unreported, Supreme Court, 1st May, 2012), and approved in EMI Records (Ireland) Ltd v Data Protection Commissioner [2013] IESC 34, (Unreported, Supreme Court, 3rd July, 2013) has been 51 I reject Mr Akhtar's unsupported assertion that the Minister's decision fails the test ......
  • Elmebayad v The Minister for Justice and Equality
    • Ireland
    • High Court
    • 7 June 2019
    ...[2012] IESC 26 (Unreported, Supreme Court, 1st May, 2012), and approved in EMI Records (Ireland) Ltd v Data Protection Commissioner [2013] IESC 34, (Unreported, Supreme Court, 3rd July, 2013) has been 22 I reject Mr Elmebayad's unsupported assertion that the Minister's decision fails the te......
  • Chubb European Group Plc v The Health Insurance Authority
    • Ireland
    • High Court
    • 22 October 2018
    ...Having regard to the test regarding the adequacy of reasons as set out in EMI Records (Ireland) Ltd. v. Data Protection Commission [2013] IESC 34, one could not be left with any reasonable doubt as to the reasons for the Respondent's decision. I do not accept that the Respondent was requir......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT