One night in 2011, a young man hopped out of a Dublin taxi and ran away without paying his fare. Understandably aggrieved, the driver responded by posting a video of the young man on YouTube—what CCTV was doing in his taxi cab is another matter. Someone saw the video and misidentified Eoin McKeogh, who was 9,500 miles away in Tokyo at the time, as the fare-dodger. So he applied to the Irish High Court, which, in January 2012, ordered that YouTube take down the video and Google stop linking to it. The Irish Courts granted McKeogh an effective right to be forgotten, illustrating how Irish law may be applied to the Internet to protect the privacy of individuals.

The McKeogh case is an illustration of how effectively Irish law can protect the privacy of individuals. This matters to Ireland’s fellow Europeans because Ireland is from where companies such as Facebook, Apple and LinkedIn control their data. Ireland’s fellow Europeans can be assured that privacy is a right under the Irish Constitution, which means that it is granted the strongest protections possible under Irish law. Ireland’s privacy laws are quite different from those of the UK, whose courts never fully recognised a right to privacy as part of its domestic law but rather imported one from the European Convention of Human Rights. Ireland does share a history with the UK, which explains why Ireland cares so much about privacy.

In the 19th century, British rule in Ireland was protected by networks of informers; the primitive predecessors of similar networks that would later be built in East Germany. And, as in Germany, the experience of living under such surveillance has had a lasting effect upon the value that Irish people place upon privacy. This is reflected in Irish public attitudes today; surveys have consistently found that privacy is one of the rights that the Irish value most.

Indeed, at times the Irish determination to protect privacy is not always helpful. Prosecutions for conspiracy are a relative rarity in Ireland as such charges are typically prosecuted upon the word of informants, whom Irish judges and juries tend to dislike. The Irish don’t have national identity numbers, which means that they can’t be uniquely identified; they don’t have national identity cards, and Ireland still lacks a public post-code system, which makes it harder to find their homes. Ireland is only now beginning to consider how systems might be developed to centralise and standardise the processing of personal data by its government.

Like the rest of Europe, Ireland has implemented the EU’s Data Protection Directive. Unlike some other states, neither the Irish implementation of this directive nor the independence of the Irish Data Protection Commissioner have ever been questioned by the EU Court of Justice. The current powers of the Irish commissioner reflect the current Data Protection Directive. But the commissioner has used his powers very effectively, prosecuting breaches of Ireland’s data protection laws on a regular basis. It’s true that Ireland’s commissioner lacks the power to impose direct fines, but the relevance of such powers is open to question. Google was recently fined 150,000 euros—or 0.0003 percent of its global turnover in 2012—by the French data protection authority: “Pocket money,” in the words EU Commissioner Viviane Reding.

But the Irish commissioner does have the ability to issue enforcement notices, which can require the blocking, rectification, erasure or destruction of personal data that is being processed contrary to the principles of data protection such as fairness and propriety of purpose. Having the power without necessarily using it can often be sufficient to achieve compliance with the law. This is reflected in the audit of Facebook he completed in 2011. That audit forced Facebook to become more transparent, to better enable users to delete their part or all of their Facebook profiles, to provide users with more controls over their data and to ensure rigorous compliance with Irish and European data protection laws.

But comparing the privacy standards of Ireland to those of other member states seems increasingly anachronistic in a world of Facebook, Google, Twitter and Edward Snowden. Each EU member state may have had its own experience of surveillance in the past, but every member state is experiencing the same rapidly evolving surveillance technologies today; Europe is still struggling to standardise its supervision of Internet cookies even as they become obsolete. Meanwhile, the use of such technologies is changing just as quickly: We simply don’t know what people will be doing online in two, five or 10 years. But we do know that whatever it is they’ll be doing, they’ll be doing a lot more of it.

Europe is currently endeavouring to regulate this world with a directive that was enacted in 1995 but conceived in 1981. The concepts that underlie the directive have proven remarkably resilient; even so, they are struggling to cope with a vast, globalised, dispersed Internet which processed data in ways undreamt of three decades ago. Recent years have seen some express frustrations about Ireland’s data protection regime, but such frustrations may be better directed at a European Data Protection regime that is now out of date.

Written By

Denis Kelleher, CIPP/E


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