We are pleased to welcome Eoin Brady to the FP Logue team
Eoin is a consultant in the firm specialising in environmental and planning law. He previously worked as Senior Planning Lawyer with a leading Irish law firm, as Senior Solicitor with EirGrid the national electricity transmission system operator, and as a State Solicitor with the Chief State Solicitors Office. He has extensive experience of litigation in each of the Irish superior courts, as well as the superior courts of Victoria, Australia where he previously practiced as a litigation lawyer.
Eoin holds a First Class Honours LLM in Environmental Law from Queens University Belfast. He has a deep interest in environmental issues and previously worked for Europe’s leading public interest environmental law organization ClientEarth in Brussels. He recognises the value of law as a tool to address environmental problems, and to ensure public participation in decisions affecting the quality of the built and natural environment.
Eoin is a tutor in environmental and energy law with the Law Society of Ireland.
All planning time limits that were temporarily suspended due to COVID are now running again as and from 24 May. This means that any judicial reviews against planning decisions need to filed within eight weeks at the latest. Please contact us if you have any questions about the new deadlines
In a recent decision the Data Protection Commission confirmed that a telephone company had to tell a subscriber whether or not details of his phone usage had been accessed by the police unless it could actually demonstrate that there would be prejudice to a criminal investigation or prosecution.
A redacted copy of the decision has been posted on www.datasubject.ie with the permission of the data subject.
This is an important decision which opens the door to greater transparency around police access to telecoms subscriber information retained under the Communications (Retention of Data) Act 2011. Under this regime there is limited oversight via the Complaints Referee – who crucially can neither confirm nor deny whether an access request unless there has been unlawful access.
This new decision of the Data Protection Commission now confirms that individuals can look for confirmation of whether an access request has been made by a state agency under the 2011 and this request can only be refused if a phone or internet company can show that it would be prejudicial to a criminal or related matter for the request to be answered.
In this particular case we acted for the data subject who had asked the telecom provider, Eir, to say whether or not a state agency had requested access to his information which Eir retained under the 2011 Act. Eir refused to answer the request citing provisions of the 2011 Act and a general policy concerning access to retained data.
The Commissioner found that this request was a valid subject access request and that Eir had failed to answer it within the prescribed time. In addition the Commissioner found that the generic policy relied on by Eir did not constitute a valid statement of reasons and in addition Eir had not informed the data subject about his right to complain to the Data Protection Commissioner.
Once the complaint was lodged Eir sought to rely on section 5(1)(a) of the Data Protection Acts 1988 to 2003 which restricts the right of access in relation to personal data “kept for the purpose of preventing, detecting or investigating offences, apprehending or prosecuting offenders …. , in any case in which the application of that section to the data would be likely to prejudice any of the matters aforesaid“
Ultimately Eir admitted that it could not show that any of the listed matters would likely be prejudice and that it could not rely on this restriction to the right of access.
The Court also went on the hold that the Commissioner did not need to establish the probability of a relevant environmental impact since that would lead to an overly narrow definition. On the other hand something more than a remote or theoretical possibility is required because this would sweep too widely.
The effect of this decision consolidates the requirement for decision makers to apply a purposive interpretation to the AIE Regulations and building on Minch confirms that the scope of the right of access extends beyond information that is intrinsically environmental to include any information on measures or activities that are likely to affect the environment.
FP Logue acted for the Appellants in the Court of Appeal.
I am contacting you to ask you to ensure that the Law Society
does all it can to encourage the Courts Service to introduce as a matter of the
utmost urgency a system of electronic filing of documents, in particular for issuing
This needs to happen as soon as possible since it looks very
likely that we are going to go into a state of severe lock-down within weeks if
not days. The staff in the High Court Central Office and presumably other court
offices are already being put in a compromising position in terms of their own
health and that of the community by being forced to operate a public counter
for filings of physical documents. I can see no need for this when we have
electronic systems that can be used just as easily.
While there is a drop-box system in the High Court and the
usual system of postal filing there are a several issues with this.
First a drop-box or postal filing requires a visit to a post office or court office which are public places. This is incompatible with the idea that we should avoid all unnecessary contact with others.
Second there is no guarantee in relation to deadlines or a way
to use this system for more urgent filings (e.g. where there is a statute of limitations
or a court direction). If there is a defect in a document there is no way to
correct it and keep the filing date.
Third most documents still require physical stamping and
signing. Paying stamp duty for most practitioners requires a visit to a court
office because a physical stamp is required. There are similar issues with the
requirement for an in-person witness to affidavits.
I am asking you as the leaders of our profession to ensure that we can still operate if and when there is a total lock down.
The following measures (at a minimum) can and should be put in place as soon as possible:
for a physical stamping of documents to be waived and ideally all court
fees waived for the duration of the crisis
for in-person swearing of affidavits to be waived – a statement of truth signed
electronically by the deponent to suffice.
may be initiated by filing papers using electronic means , e.g. by email,
with confirmation of record number, return date etc by email or phone
within one working day.
permitting service by email and/or download link as default
service to guarantee service levels in terms of turn around time, call
For all concerned these measures are urgently needed to
protect our health, those of Courts Service officials and the wider community.
For many practitioners these measures could be crucial to the survival of their
I am therefore asking for you to commit to working with the Courts
Service to put in place a fully electronic filing system as quickly as
We have the technology, we just need the will to do it.
This week the Irish Circuit Court upheld a decision of the Data Protection Commissioner which found that the Courts Service breached the Data Protection Acts when it inadvertently uploaded a copy of a judgment naming a party whose identity was protected by Court Order.
In reaching this conclusion the Court considered the Wirtschaftsakademie and Jehovan todistajat decisions of the CJEU and found that the Courts Service was a data controller. The decision dismissed the idea that the original judge was the sole data controller but left open the possibility that in certain circumstances the judiciary and the Courts Service could be joint controllers.
You can read a copy of the judgment below or download it here.
The word “privacy” is fast becoming a global term for laws and issues concerning personal data. There is a growing community of privacy professionals, with privacy certifications, part of an international privacy sector and talking about data privacy.
As a result, it is increasingly common to see “privacy” or “data privacy” being used in Europe to refer to data protection. We are also seeing Data Protection Day (28 January) being renamed internationally as Data Privacy Day, even though the date marks the anniversary of the Council of Europe’s Convention 108, a key milestone in the development of data protection.
But here’s the thing. Whatever about other parts of the world, in the European Union data protection and privacy are two separate laws with different functions. Using privacy as a catch-all or substitute for data protection is misleading and wrong. It is important to use these terms correctly in the European Union to avoid public and regulatory confusion about legal obligations and rights and dilution of what data protection really means.
Data Protection means the protection of individuals with regard to the collection, use and other processing of personal data. In this context, personal data is any information relating to an identified or identifiable individual, regardless of whether the information is private, professional, or even publicly available. The General Data Protection Regulation (GDPR) sets out obligations for parties processing personal data, including the legal bases for processing, data protection principles, and accountability measures. It also defines rights for individuals, including rights of access and erasure.
Privacy on the other hand means an individual’s right to maintain control over and be free from intrusion into their private life, family life, home and communications. The law derives from the European Convention on Human Rights, the EU Charter of Fundamental Rights, the ePrivacy Directive, as well as various national laws.
Of course, data protection and privacy are not completely unconnected issues in practice. Where the GDPR requires a risk-based approach, where processing of personal data infringes the GDPR, or where there has been a personal data breach, one of the possible risks to individuals is an invasion of privacy. However, the GDPR is not a privacy law and its scope is not limited to data that is private, rather it sets out obligations for those who process people’s personal data (notably, lawfulness of processing and accountability), rights for individual data subjects, and powers for supervisory authorities and courts to monitor and enforce compliance.
As the reframing of “privacy” and “data privacy” to mean or include data protection is increasingly common in the European Union, it is important to reclaim the meaning of data protection and apply it correctly. This is not about semantics. In the European Union, data protection and privacy have specific legal meanings, and it is essential to use the terms in the correct way to avoid confusion and misunderstanding about legal obligations and rights.
And if you have a data protection problem, then you need a data protection professional – not a privacy professional – or at least someone who can tell the difference between the two.
A clip from the TG4 Uchtú documentary where I discuss subject access rights with broadcaster Evanne Ní Chuilinn
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