Realm Communications Ltd v Data Protection Commissioner

JurisdictionIreland
JudgeMr. Justice McCarthy
Judgment Date09 January 2009
Neutral Citation[2009] IEHC 1
CourtHigh Court
Date09 January 2009

[2009] IEHC 1

THE HIGH COURT

No. 489 J.R./2008
Realm Communications Ltd v Data Protection Commissioner
JUDICIAL REVIEW

BETWEEN

REALM COMMUNICATIONS LIMITED
APPLICANT

AND

THE DATA PROTECTION COMMISSIONER
RESPONDENT

EUROPEAN COMMUNITIES ACT 1972 S3

EUROPEAN COMMUNITIES (ELECTRONIC COMMUNICATIONS NETWORKS & SERVICES) (DATA PROTECTION & PRIVACY) REGS 2003 SI 535/2003

EUROPEAN COMMUNITIES (ELECTRONIC COMMUNICATIONS NETWORKS & SERVICES) (DATA PROTECTION & PRIVACY) REGS 2003 13(1)(b)

EUROPEAN COMMUNITIES (ELECTRONIC COMMUNICATIONS NETWORKS & SERVICES) (DATA PROTECTION & PRIVACY) REGS 2003 13(9)(a)

DATA PROTECTION ACT 1988 S31(1A)

EUROPEAN COMMUNITIES (ELECTRONIC COMMUNICATIONS NETWORKS & SERVICES) (DATA PROTECTION & PRIVACY) REGS 2003 17(1)

EEC DIR 2002/58

DATA PROTECTION ACT 1988 S10

EUROPEAN COMMUNITIES (ELECTRONIC COMMUNICATIONS NETWORKS & SERVICES) (DATA PROTECTION & PRIVACY) REGS 2003 REG 13

CONSTITUTION ART 40

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

DATA PROTECTION ACT 1988 S10(1B)

BELL & RAY EU ELECTRONIC COMMUNICATIONS LAW 2004

EEC DIR 2002/58 RECITAL 6

EEC DIR 2002/58 RECITAL 40

EEC DIR 2002/58 RECITAL 41

EEC DIR 2002/58 RECITAL 47

EEC DIR 2002/58 ART 13

DATA PROTECTION ACT 1988 S26

INTERPRETATION ACT 2005 S5

B(D) v MIN FOR HEALTH & HEPATITIS C COMPENSATION TRIBUNAL UNREP SUPREME 26.3.2003 2003/4/812

O'C (M) v MIN FOR HEALTH UNREP SUPREME 26.3.2003 2001/18/5089

DATA PROTECTION ACT 1988 S30(2)

PETTY SESSIONS (IRELAND) ACT 1851 S10(4) (UK)

CRIMINAL LAW

Data protection

Unsolicited communications - Summons - Electronic communications service - Direct marketing - Complaints - Whether condition precedent to prosecution that attempts to seek amicable resolution of complaints made - Bases for investigation of complaints - Whether proper construction of legislation in light of European Directive gave rise to condition precedent - Whether interpretation of Directive necessary - Balance between legitimate interests of business and privacy and data protection rights of individuals - Intention of Oireachtas - Literal interpretation - Nature of criminal prosecution - Whether requirement for attempt to seek amicable resolution would fetter prosecutor in exercise of discretion - Summary prosecution - DB v Minister for Health [2003] 3 IR 12 and MO'C v Minister for Health [2002] 1 IR 234 considered - Data Protection Act 1988 (No 25), ss 10 and 31 - Data Protection (Amendment) Act 2003 (No 6), s 10 - European Communities (Electronic Communications Networks and Services) (Data Protection and Privacy) Regulations 2003 (SI 535/2003), regs 13 and 17 - Relief refused (2008/489JR - McCarthy J - 9/1/2009) [2009] IEHC 1

Realm Communications Ltd v Data Protection Commissioner

Facts: 60 summons were pending before the District Court charging the applicant with offences contrary to Regulation 13(1)(a) of the European Communities (Electronic Communications Networks and Services) (Data Protection and Privacy) Regulations 2003, made pursuant to s. 31(1a) of the Data Protection Act 1988, as amended by the Regulations. The applicants sought a declaration inter alia that the respondent acted unlawfully in issuing summons for the breaches where the respondent had failed to arrange a reasonable time for the amicable resolution between the applicants and complaints of complaints.

Held by McCarthy J. that it could not have been the intention of the Oireachtas to have introduced such drastic changes into the administration of criminal justice without explicitly saying so. There could be no effective enforcement of the Acts otherwise. There was no absurdity, ambiguity obscurity or capacity for advancing the proposition that a literal interpretation would fail to reflect the plain intention of the Oireachtas. The reliefs sought would be refused.

Reporter: E.F.

1

JUDGMENT delivered by Mr. Justice McCarthyon the 9th day of January 2009

2

1. Pursuant to the European Communities (Electronic Communications Networks and Services) (Data Protection and Privacy) Regulations 2003, made, pursuant to s. 3 of the European Communities Act 1972, by Statutory Instrument No. 535 of 2003 ("The Regulations") and in particular Regulation 13(1)(b):-

"A person shall not use or cause to be used any publicly available electronic communications service to send an unsolicited communication for the purpose of direct marketing by means of electronic mail, to a subscriber, who is a natural person, unless the person has been notified by that subscriber that for the time being he or she consents to the receipt of such communication".

3

and by the provisions of Regulation 13(9)(a):-

"A person who fails to comply with paragraph (1) … shall be guilty of an offence"

4

and, in turn, by s. 31(1A) of the Data Protection Act 1988 (as amended by the Regulations):-

"A person guilty of an offence under the … regulations … shall be liable on summary conviction to a fine not exceeding €3,000 …"

5

2. There are pending before Dublin Metropolitan District Court some 60 summonses charging the applicant ("Realm") with offences contrary to Regulation 13(9(a) although they are perhaps infelicitously worded, to put it no further, in as much as the offence is one contrary to Regulation 13(1)(b) of using or causing to be used an electronic communications service contrary to the prohibition in s. 13(1)(a) of the Regulations, the penalty provision being s. 31(1A) of the Act.

6

3. On the 28 th April, 2008, my colleague Peart J. afforded leave to Realm to seek certain relief to restrain the continuance of those proceedings by the Data Protection Commissioner ("the Commissioner") (and of course they are stayed pending the outcome hereof). That relief (so far as it is substantive and relevant at this juncture) is set out in the statement grounding application for leave to apply for judicial review ("Realm's Statement") at paragraphs 1 to 5 inclusive, as follows:-

7

2 "(1)A declaration that the respondent acted unlawfully in issuing summonses for alleged contraventions of Regulations 13(1)(b) and Regulation 13(9)(a) of the European Communities (Electronic Communications Networks and Services) (Data Protection and Privacy) Regulations, 2003 ( S.I. No. 535/2003) ("the 2003 Regulations") and section 31(A) of the Data Protection Acts, 1988 and 2003 ("the Acts") (as inserted by Regulation 17(1) of the 2003 Regulations) in circumstances where the respondent has failed in his statutory obligation to arrange within a reasonable time for the amicable resolution between theApplicants and the complainants of complaints in relation to the alleged contraventions the subject of summonses.

8

(2) A declaration that the Respondent can only lawfully exercise his power under the Acts to summarily prosecute on foot of complaints of contraventions of the 2003 Regulations if section 10(1) of the Acts has been complied with.

9

(3) A declaration that the Respondent has failed to satisfy the statutory precondition to the exercise of his power to prosecute a contravention of the said Acts and/or the 2003 Regulations, that section 10(1) of the Acts be complied with.

10

(4) An Order by way of Certiorari quashing the Respondent's decisions to institute the summary prosecutions instituted by the respondent against the Applicant, as set out in the Schedule to this Statement of Grounds.

11

(5) An Order by way of prohibition preventing the Respondent from further prosecuting the said summonses."

12

4. The grounds upon which leave was granted are those set out at paragraphs 1 to 7 inclusive of para. E of Realm's Statement, as follows:-

13

2 "(1) The Respondent is a statutory officer who is appointed by the provisions of the Data Protection Act 1988, as amended to be the supervisory authority in the State for the purposes of enforcing the State's obligations to its citizens in respect of data protection matters.

14

(2) Under the terms of the Data Protection Act 1988, as amended the Respondent is given a range of civil and criminal enforcement powers, including the powers to issue enforcement notices andprohibition notices and to institute summary prosecutions, in respect of contraventions of the Acts and the 2003 regulations.

15

(3) Regulation 17(1) of the 2003 Regulations (which give effect to Directive 2002/58/EC) ("the Directive") provides, inter alia, that section 10 of the 1988 Act as amended (including the provisions of section 10(1) in relation to complaints) shall apply to the 2003 Regulations. The provisions of section 10(1) of the 1988 Act as amended accordingly apply to a complaint made to the Respondent that there has been a contravention of, inter alia, Regulations 13 of the 2003 Regulations.

16

(4) The Respondent asserts that he has received a number of complaints from consumers that they have received unsolicited communications from the Applicant in contravention of Regulations 13(1)(b) and 13(9)(a) of the 2003 Regulations.

17

(5) Despite the clear obligation on the Respondent, pursuant to section 10(1) of the 1988 Act as amended, to arrange within a reasonable time for the amicable resolution by the parties concerned of the matter a subject of the complaint before deciding to take any enforcement steps (including summary prosecution) the Respondent unlawfully and/or irrationally and/or in excess of jurisdiction failed to make any attempt at all for the amicable resolution by the parties of the complaints concerning alleged contraventions of the 2003 Regulations, before deciding to prosecute same.

18

(6) The Respondent has acted unlawfully and/or irrationally and/or in excess of jurisdiction in deciding to prosecute the Applicant for alleged contraventions of Regulation 13 of the 2003 Regulations without complying with a necessary statutory precondition of the commencement of such proceedings and/or in failing to arrange for...

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