‘Last minute’ law change bid to ‘muzzle’ critics of Data Protection Commission - ICCL

A “last-minute” Government amendment to a Bill is an effort to “muzzle” critics of the Data Protection Commission (DPC) and will make the commission’s decision-making “even more opaque”, a civil liberties group has claimed.

The Irish Council for Civil Liberties has urged all parties in the Dáil to challenge the proposed amendment to the Courts and Civil Law (Miscellaneous Provisions) Bill 2022 when it comes up for final debate on Wednesday.

The amendment provides that the Commission may direct information deemed by it to be confidential not be disclosed. Failure to comply with a non-disclosure notice issued by the commission will be an offence liable on summary conviction to a €5,000 fine.

Dr Johnny Ryan of the ICCL said the amendment “will gag people from speaking about how the DPC handles their complaint and from speaking about how big tech firms or public bodies are misusing their data”.

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The ICCL’s concerns include that there is no explanation concerning what or why information may be deemed confidential, he outlined. “Even information that is not ‘commercially sensitive’ will no longer be utterable.”

This, he said, will “make it impossible for journalists to properly report on Ireland’s GDPR [General Data Protection Regulation] supervision of Big Tech firms that have their European headquarters here, including Google, Meta, Apple, Microsoft and TikTok”.

If this amendment was in place earlier, data privacy activist and lawyer Max Schrems might have been gagged from speaking out about data privacy violations by Facebook, including violations of European privacy laws, he said.

Justice should be done in public and the DPC should be holding GDPR hearings in public, Dr Ryan said.

This, he said, was made clear by the Supreme Court’s Zalewski decision, where the court ruled there was no justification for the blanket ban on public hearings of the Workplace Relations Commission.

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The Government, Dr Ryan said, “is attempting to make DPC decision-making even more opaque”.

The DPC is already exempted from freedom of information rules that could have aided in its reform, he said. “Ireland’s enforcement of the GDPR against big tech, and how it upholds the data rights of everyone in Europe, should not be the subject of eleventh-hour amendments inserted during the end-of-term legislative rush.

“We ask the Government why it wants to do this? And why has it attempted to do so in a last-minute amendment that evades proper scrutiny?”

If enacted, this amendment may further damage the proper flow of information between the DPC and its peers across the European Union, because the DPC, the lead data protection enforcer across Europe, will have the power to designate as confidential material that should be shared with other European authorities, he added.

The DPC, he noted, is currently suing all other EU GDPR supervisory authorities (collectively, the European Data Protection Board) at Europe’s highest court.

The ICCL, Dr Ryan added, is concerned the amendment creates a risk of conflict with imminent European law as the European Commission is currently formulating a new regulation to harmonise the conduct of cross-border GDPR cases.