Customer can sue Eir over alleged breach of data obligations, High Court rules

Judge strikes out further claim by Michael Burke alleging he was defamed by Eir in an email

 

A High Court judge has refused an application by Eir to halt a legal action by one of its customers over alleged breach of its obligations under the Data Protection Acts.

Mr Justice Max Barrett however struck out a further claim by Michael Burke alleging he was defamed by Eir in an email sent to communications regulator ComReg on March 6th 2015. This part of his claim was “hopelessly” outside the applicable time limits for defamation proceedings, he said. It was for Mr Burke to decide how he would proceed in relation to a further alleged defamation in July 2017 and that matter was not before the court for decision at this stage, the judge added.

He was giving judgment on Thursday on a pre-trial application by Eircom Ltd, trading as Eir, to strike out Mr Burke’s defamation claim as out of time, disclosing no reasonable cause of action and/or frivolous and vexatious. Eir also sought the strike out of a breach of data obligations claim on grounds it had already been dealt with by the Data Protection Commissioner. The struck out defamation claim concerned an allegation by Mr Burke, representing himself, he was defamed in an email sent by Eir to Comreg on March 6th, 2015, by intimating Mr Burke had called in to make a payment when no such payment was due.

He claimed Eir continued to maintain notations on his file stating disconnection of services was due to non-payment. Eir denied defamation but had admitted it disconnected Mr Burke’s services for a short period about March 5th 2015 and this should not have occurred. It apologised, re-connected Mr Burke and applied a goodwill credit to his account. Later that month, in response to a complaint by Mr Burke to ComReg over how he was treated by Eir, the company again apologised for what had occurred.

The judge said Mr Burke was apparently prepared to let matters rest but in January 2016 had a further “run-in” with Eir regarding a price increase and charges on his account. As a result, he began to suspect there were adverse annotations on his customer account regarding the March 2015 disconnection and he asked Eir to amend the annotations. It informed him the notes had been amended to show the disconnection was due to an error by Eir and not to a delay in payment by him. He submitted a data access request to Eir.

After he got no reply to three such requests between May and September 2016, he made a complaint to the Data Protection Commissioner.

In December 2018, the judge said the commissioner “unsurprisingly” held Eir had breached the 40-day statutory turnaround time for responding to his data access request. However, Mr Burke realised the documentation Eir was now forced to provide did not tally with that which he already had. He got a solicitor and said he then received “copious additional documents” in May 2019. This documentation appeared to explain another adverse experience with Eir he had already had in July 2017, the judge said. He had been told by two different shops he was not entitled to a phone upgrade because he was barred or because of a “legacy account.” The upgrade issue was later rectified by Eir.

Mr Burke sued over the alleged 2015 defamation and the judge granted Eir an order striking that claim out on grounds it was out of time. The judge said, by the time Mr Burke “belatedly” got the further documentation from Eir in 2019, he had already brought proceedings over the 2015 issues and may not have appreciated at that stage he may have been defamed in 2017 (during the “upgrade” matter). It was a matter for him to decide what to do in relation to the 2017 matter, the judge said.

With regard to Eir’s application to strike out the claim alleging breach of data obligations, the judge said Mr Burke was not out of time on that issue. He was entitled to litigate whether Eir has a liability over events post-dating the commissioner’s decision in his favour, the judge said.