O'Neill v Revenue Commissioners

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Conleth Bradley
• Judgment Date: 31 May 2024
• Neutral Citation: [2024] IEHC 337
• Docket Number: Record No. 2021/500JR

Between/

Barth O'Neill

Applicant

and

The Revenue Commissioners

Respondent

[2024] IEHC 337

Record No. 2021/500JR

THE HIGH COURT

JUDGMENT of Mr. Justice Conleth Bradley delivered on the 31 ^st day of May 2024

INTRODUCTION

Preliminary

1 This is an interlocutory application in which the Applicant seeks either (a) an order that his substantive judicial review proceedings be heard otherwise than in public ( i.e., in camera) or (b) an order directing the anonymisation of that challenge.

2 The substantive proceedings concern the Applicant's challenge to the Respondent's refusal to erase data in relation to his 2007 tax return, pursuant to the right to erasure (“ right to be forgotten”) contained in Article 17 of the General Data Protection Regulation (“GDPR”). 1

Leave to apply for judicial review: 31 ^st May 2021

3 Prior to the issuing of this interlocutory motion, on 31 ^st May 2021 this court (O'Moore J.) granted the Applicant leave to apply for judicial review to seek a number of reliefs, including: (a) an order of mandamus directing the Respondent to comply with the GDPR, in particular Articles 5, 6 and 17, the EU Charter, in particular Article 8, the Taxes Consolidation Act 1997, in particular section 851B, the constitutional right to privacy and the doctrine of proportionality with respect to the right to be forgotten, and data processing generally with respect to the tax year 2007; (b) an order of mandamus requiring the erasure (or reduction to zero) of all personal data concerning the Applicant held by or on behalf of the Respondent without undue delay and/or for four or six years, or such other period as the court may direct, in accordance with the GDPR, in particular Articles 5, 6 and 17, the EU Charter, in particular Article 8, the Taxes Consolidation Act 1997, in particular Section 851B, the constitutional right to privacy, and the doctrine of proportionality with respect to the right to be forgotten, and data processing generally; (c) in the alternative, an order pursuant to section 117 of the Data Protection Act 2018, Article 17 of the GDPR, and Order 84B of the Rules of the Superior Courts 1986, directing the Respondent to erase (or reduce to zero) all records relating to the year 2007 and such additional years as the court deems lawful.

4 The Applicant also sought and was granted leave to apply for a number of ancillary reliefs at paragraphs (d) to (p) of the Statement of Grounds.

The in camera/anonymisation application

5 In summary, the application before me is essentially an interlocutory application, issued post-leave, and comprised in two notices of motion (dated 5 ^th December 2022 and 12 ^th December 2023) where, as mentioned, the Applicant seeks an order that the substantive proceedings be either heard in camera or anonymised. Initially, the Applicant relied inter alia upon the inherent jurisdiction of the High Court, Article 43 of the Charter of Fundamental Rights of the European Union (“the Charter”) and Article 13 of the European Convention on Human Rights and Fundamental Freedoms (“the ECHR”), and in terms of the later amendment, which sought to have the hearing heard otherwise in public ( in camera), the Applicant also seeks to invoke section 117 and section 156 of the Data Protection Act 2018 (“the 2018 Act”).

6 As just mentioned, by Notice of Motion dated 5 ^th December 2022, the Applicant sought inter alia an “ order that in accordance with the inherent jurisdiction of the court and the Applicant's right to an effective remedy, under Article 47 of the EU Charter of Fundamental Rights and Article 13 of the European Convention on Human Rights, that these proceedings are anonymised using initials that do not relate to the Applicant's name.”

7 By further Notice of Motion dated 12 ^th December 2023, the Applicant sought an amendment to the earlier motion in the following terms: “[t] hat the proceedings be held otherwise than in public as allowed for under … section 156 of the Data Protection Act 2018.”

8 The Applicant is a litigant in person. Eoin Clifford SC, together with David Quinn BL, appeared the Respondent.

Terms of settlement: 13 ^th June 2016

9 The Applicant reached terms of settlement (comprising nine numbered paragraphs) with the Respondent on 13 ^th June 2016.

10 The first paragraph of the terms of settlement provided for payments in relation to CGT and income tax both of which assessments were recorded as being under appeal by the Applicant. The second paragraph of the settlement provided for the manner and time period of the payment of the sums referred to in the first paragraph.

11 The fourth paragraph of the settlement inter alia provided that when the full amount of the sum referred to had been discharged in accordance with the terms of paragraph 2, “ the Respondent, in consideration of the Appellant's financial position, shall write out the balance of the assessments as being uncollectable.”

12 By e-mail dated 22 ^nd February 2021 from an official in the Data Protection Unit of the Respondent, the Applicant was inter alia advised that “[a] rticle 17 of the GDPR is not an absolute right and there are circumstances in which the further retention of the personal data is lawful. In the case of Revenue, personal data can be retained “for compliance with a legal obligation which requires processing by Union or Member State law to which the controller is subject…” as set down in Article 17(3)(b). The legal obligation referred to is the Taxes Acts, in particular Section 851B(3), Taxes Consolidation Act 1997 which allows taxpayer information to be processed by the Revenue Commissioners, inter alia, where required for the purposes of the ‘administering, raising, collecting and accounting for tax under the care and management of the Revenue Commissioners.’”

13 The letter added that “[i] n the circumstances, the information to which you refer is part of your tax record and will be treated as confidential taxpayer information and processed in accordance with the Tax Acts. Accordingly we are unable to accede to your request under Article 17 of the GDPR. If you disagree with this decision, you have the right to make a complaint to the Data Protection Commission.”

SUMMARY OF THE APPLICANT'S CASE

14 The Applicant avers by Affidavit sworn on 25 ^th October 2022 inter alia that without the benefit of this interlocutory application there would be “ no point in the substantial relief sought (the subject of the 31 ^st May 2021 leave to take judicial review) – that is the Right to be Forgotten”; that the “ Right to be Forgotten would be set to nought” if the proceedings or the fact that there was a dispute over the sum referred to “ was reported in the media (all forms), recorded on the Court's website or in the various law reporting journals”; “ if the legal proceedings or the quantum were to be reported in the media (all forms) or otherwise “an impression might be created whereby I am seen to be a non-compliant tax-payer. This could do irreparable damage to my reputation as a compliant tax-payer, it would be defamatory and would lower my reputation in the eyes of reasonable members of society””; that the Applicant's main business interest was audited by the Revenue Commissioners in February 2019 and the conclusion of the Revenue Commissioner's finding was that there was no outstanding liability, and all paperwork and procedures were in accordance with all the Tax Acts and that the “ ignominy of being … labelled “tax dodger”, even if incorrectly so, is something that stays with one for life and it is a topic that the media/public are fixated with and would have lasting consequences on my right to earn a living.”

15 In summary, the Applicant claims that the central focus of his case is about his data and should be seen through the prism of the Charter and the ECHR, whereas he contends that the Respondent seeks to emphasise the taxation context and question the applicability of the Charter and the ECHR.

16 The Applicant refers to case-law which he submits illustrates the differences in the development of data protection law domestically and in the EU, including, Nowak v Data Protection Commissioner (Case C-434/16) (ECLI:EU:C:2017:994) and GD v Commissioner of An Gárda Síochána (C-140/20) (ECLI:EU:C:2022:258).

17 The Applicant relies, in particular, on paragraph 29 of the judgment of the CJEU in Nowak which stated that “[i] t is not disputed that a candidate at a professional examination is a natural person who can be identified, either directly, through his name, or indirectly, through an identification number, these being placed either on the examination script itself or on its cover sheet”. The Applicant submits that an equivalent situation arises in his case and he wishes to have his name replaced by initials.

18 There is, what the Applicant says, is a minor difference between him and the Respondent on the applicability of the case law of the CJEU and that of the European Court of Human Rights (“the Strasbourg Court”). He submits that the jurisprudence of the Strasbourg Court is persuasive but that every organ of the State is bound by it arising from the provisions of section 3 of the European Convention on Human Rights Act 2003.

19 The Applicant cites Article 6(3) of the Consolidated Version of the Treaty on the European Union which provides that “[f] undamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member states, shall constitute general principles of the Union's law.” He refers to what he says is the equivalence in the treatment of the provisions of the ECHR and the Constitution in the judgment of the Supreme Court in Gilchrist v Sunday Newspapers Ltd [2017] IESC 18; [2017] 2 I.R. 284 per O'Donnell J. (as he then was) at paragraphs 23 and 24, pages...