On May 16, 2018, the Irish Data Protection Bill 2018 (the “Bill”) entered the final committee stage in Dáil Éireann (the lower house and principal chamber of the Irish legislature). The Bill was passed by the Seanad (the upper house of the legislature) at the end of March 2018. In the current stage, final statements on the Bill will be made before it is signed into law by the President.
The Bill implements Ireland’s national legislation in areas where the EU General Data Protection Regulation (“GDPR”) provides a margin of maneuver to Member States, and specifies the investigative and enforcement powers of the Irish Data Protection Commission. The Bill also implements Directive 2016/680 (Law Enforcement Directive) into Irish law.
Key highlights of the Bill include:
- Data Protection Commission: The Bill establishes the Data Protection Commission, which replaces the current Office of the Data Protection Commissioner. The Bill permits the appointment of three Commissioners, one of which will act as Chair and have voting rights in cases of decisions to be taken by the Commission where the vote is tied.
- Children’s Data: The Bill notes that for the purposes of Data Protection Regulation in Ireland, a child is a person under 18 years of age. The initial draft of the Bill specified 13 years as its implementing age of digital consent in the context of Article 8 of the GDPR. However, in the previous committee stage, the age was amended to 16 years. A review of the provision is to take place three years after it comes into operation. Furthermore, the Bill specifies that processing children’s data for purposes of direct marketing, profiling or micro-targeting is an offense punishable by administrative fines.
- Common Travel Area: The Bill provides that processing of personal data and disclosure of data for purposes of preserving the Common Travel Area (between Ireland, the United Kingdom of Great Britain and Northern Ireland, the Channel Islands and the Isle of Man) is lawful where the controller is an airline or ship.
- Further Processing: The Bill states that processing of personal data or sensitive data for a purpose other than that for which the data was originally collected is lawful where the processing is necessary to (1) prevent a threat to national security, defense or public security; (2) prevent, detect, investigate or prosecute criminal offenses; (3) provide or obtain legal advice or for legal claims and proceedings; or (4) establish, exercise or defend legal rights.
- Sensitive Data: The Bill outlines circumstances additional to those of Article 9 of the GDPR where the processing of special categories of data is permitted. These include the processing of (1) special categories of data for purposes of providing or obtaining legal advice, for legal claims and proceedings or to establish, exercise or defend legal rights; (2) political opinion data carried out in the course of electoral activities for compiling data on peoples’ political opinions by a political party or a candidate for election, or a holder of elective political office in Ireland and by the Referendum Commission in the performance of its functions; (3) special categories of data where necessary and proportionate for the administration of justice or the performance of a function conferred on a person by or under an enactment or by the Constitution; and (4) health data where necessary and proportionate for insurance, pension or property mortgaging purposes.
- Right to Access Results of Examinations and Appeals: The Bill specifically provides for a right of access to examination results, examination scripts and the results of an examination appeal.
- Enforced Access Requests: The Bill notes that a person who requests that an individual make an access request in connection with the recruitment of that individual as an employee, the continued employment of that individual or for purposes of a contract for the provision of services to the person by the individual will be guilty of an offense and subject to a fine or imprisonment.
- Right to Object to Direct Marketing: The Bill protects direct mailing carried out in the course of electoral activities, subject to certain conditions, from the right to object to direct marketing.
- Administrative Fines: The Bill specifies that where the commission decides to impose an administrative fine on a controller or processor that is a public authority or public body, but is not a public authority or public body that acts as an undertaking within the meaning of the Competition Act 2002, the amount of the administrative fine concerned shall not exceed €1,000,000. Previous editions of the Bill exempted such public authorities and public bodies from administrative fines.
- Representative Actions: The Bill permits a data protection action to be brought on behalf of a data subject by a non-profit body, organization or association, and the court hearing the action shall have the power to grant the data subject relief by way of injunction, declaration or compensation for the damage suffered by the plaintiff as a result of the infringement. Previous editions of the Bill did not permit recovery in the form of damages.