Data Commissioner's prosecution can go ahead


Realm Communications Ltd -v- Data Protection Commissioner

High Court

Judgment was given by Mr Justice McCarthy on January 9th, 2009.


The Data Protection Commissioner did not act unlawfully in issuing summonses against a company using text messages for marketing purposes (Realm) without the consent of the recipients, without having first sought to arrange an amicable resolution between the company and the complainants.


The proceedings arose from an EU Directive on Data Protection, translated into Irish law by Statutory Instrument 535 of 2003. These included a provision that a person should not send unsolicited communications for the purpose of direct marketing without the consent of the recipient. A person guilty of this offence was liable, on summary conviction, to a fine not exceeding €3,000. Following the receipt of a number of complaints against Realm, the Data Protection Commissioner issued 60 summonses against the company in the District Court.

Realm obtained leave to take judicial review proceedings seeking the quashing of the decision of the commissioner to institute summary proceedings, on the grounds that he could only do so if Section 10 (1) of the regulations, providing for the commissioner to carry out an investigation, was complied with.

Realm referred to guidelines published on the commissioner’s website to the effect that in the first instance the commissioner attempts to resolve matters amicably. Its case was that such an attempt was a precondition to taking a prosecution.

The commissioner responded that the reference to an attempt to arrange for an amicable resolution solely arose in relation to dealing with a complaint, and not to the exercise of his investigative or enforcement powers. He also said that the original directive, on which the regulations were based, did not contemplate a “prior requirement to mediate”.

The commissioner stated that he sought to deal with enforcement issues without recourse to prosecution, while remaining fully entitled to “adopt the latter course”. He also pointed out that mediation would not be effective in relation to repeat offenders.


Mr Justice McCarthy said the directive did not impose any explicit obligation on the State to provide for an attempted amicable resolution prior to enforcement. He disagreed with the position of Realm, that such a precondition was necessary to strike a balance between the legitimate interests of businesses in using electronic communications networks and people’s data protection rights.

The natural and ordinary meaning of the words in the statute gave rise to investigatory powers under three, overlapping headings, including, in certain circumstances, to attempt to arrange an amicable resolution.

There was nothing in section 10 of the regulations to suggest that an obligation to arrange an amicable resolution must be interpreted as importing a limitation on the power to prosecute, or a prohibition on prosecution, unless a resolution had been attempted and failed.

Further, even if an amicable resolution took place, a breach of the law would still exist. There was nothing in the regulations to suggest that a resolution would “expunge” or render inadmissible evidence of the breach. The facts would remain.

The nature of a criminal prosecution was an issue between the State and an alleged wrongdoer. The private interest of a party injured or aggrieved by the alleged wrongdoing is irrelevant in point of law. The erection of such a precondition to a prosecution would “uniquely fetter the prosecutor in the exercise of his discretion, and would thus thereby introduce... a question of private interest into the community’s right to enforce the law”, the judge said.

Nor did he think it could have been “in the contemplation of the Oireachtas to place in the hands of a criminal (I speak generally of course) the capacity to delay and perhaps undermine a prosecution by merely ostensibly engaging in an attempt at amicable resolution . . . Such a provision would introduce an entirely new phenomenon at variance with the nature of criminal prosecutions,” he said. The statutory obligation to seek an amicable resolution was unrelated to prosecution.

He also said that a summary prosecution must be begun within 12 months of the date of the offence. If a complaint was made within days of the expiry of this deadline, an obligation to attempt a mediation could delay the prosecution beyond it.

For all these reasons, he refused Realm the reliefs sought.

The full judgment is on

Colm O hOisin SC and Cian Ferriter BL, instructed by Hamilton Turner solicitors, for Realm; Paul Screenan SC and David Keane, BL, instructed by Arthur Cox and Co, for the Data Protection Commissioner