Irish Data Protection Commissioner fails to halt GR

The Irish High Court recently applied CJEU jurisprudence to quash a direction of the Data Protection Commissioner that sought to prevent ISP Eircom operating a voluntary Graduated Response scheme. This continues the trend of judicial disregard for the fulminations of the Article 29 Group and their lay followers.

In January 2009, the Irish Recorded Music Association, representing record labels, settled an injunction claim against Eircom, the leading Irish ISP, on the basis that the latter would implement a Graduated Response scheme. The compatibility of the scheme was tested in proceedings before the High Court (EMI Records & Ors -v- Eircom PLC [2010] IEHC 108 (16 April 2010)). However, it was subsequently held that there was no jurisdiction under the Irish Copyright and Related Rights Act 2000 to issue an injunction against an ISP requiring the prevention of infringements by subscribers (EMI Records [Ireland] Ltd & Ors -v- UPC Communications Ireland Ltd [2010] IEHC 377 (10 November 2010)). Eircom said that it would continue, however, to perform the terms of its compromise agreement and apply the Graduated Response in the case of detected infringements (Eircom press release, 8 December 2010). (The Irish Government has recently amended the 2000 Act to correct this gap in its implementation of Article 8(3) of the 2001 Directive on Copyright in the Information Society.)

On 11 January 2012, however, the Irish Data Protection Commissioner issued a direction to Eircom instructing it to desist from operating its graduated response scheme, citing violations of data processing law. This provoked an application for judicial review by the record companies party to the scheme (EMI Records (Ireland) Ltd v Data Protection Commissioner [2012] IEHC 264). On 27 June 2012, Mr Justice Charleton, granted the application, quashing the direction. Charleton J held that the Commissioner’s sketchy reasons for issuing the direction were misconceived. Reviewing recent decisions of the Court of Justice of the European Union, he held that the operation of a Graduated Response scheme did not per se violate data protection law, and that to the limited extent the Commissioner had given reasons for his direction, he had misunderstood the law.

It seems that the judges, both national and supra-national, continue to upset the assumptions of the online privacy lobby.