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The 2014 CJEU judgment in Google Spain represented an historic victory for privacy campaigners when it held that the individual right to privacy and data protection generally took precedence over freedom of expression, and the rights of users to access information published on the internet.

In its judgment the CJEU said that the Google search engine is subject to EU data protection law and that Google has a duty to uphold the rights of individuals to have personal data erased from its search results unless there is a legitimate interest in having public access to that information.

In an age where you are who Google says you are, the judgment was decisive in setting boundaries for the tech giants.

We were curious about the other arguments that had been raised before the CJEU and how they had been dealt with, so we requested the submissions made in the case from the European Commission Legal Service under Regulation (EC) 1049/2001, on public access to European Parliament, Council and Commission documents.

Before July 2017, the European Commission maintained that the written submissions of the parties did not come within the scope of Regulation 1049/2001. The CJEU decision in Commission v Patrick Breyer (Case C-213/15 P) changed this and allowed for access to documents submitted to the court by third parties to be released after a case had been decided. This increased transparency allows for greater understanding of the ECJ’s reasoning and the consideration it gives to the arguments made before it.

The Legal Service shared the written observations to the Court of :

1. The European Commission,
2. Google Spain SL and Google Inc. (the Appellants),
3. the Greek Government,
4. the Spanish Government,
5. the Italian Government,
6. the Austrian Government and
7. the Polish Government.

The Commission’s response is set out in its letter:

Of interest was the summary treatment by the Court of arguments of proportionality and the right to operate a business; the “mere economic interest” of the search engine was dismissed despite the protection offered to the ‘freedom to run a business’ under article 16 of the Charter of Fundamental Rights. The concerns raised by Google that in singling it out, it would be unduly prejudiced, quickly dissipated when other search engines, such as Yahoo and Bing (operated by Microsoft) recognised the implications of the judgment for them and adapted.

The submissions are in French, as this is the working language of the European Court of Justice, but if there is something among the documents you’d like to examine in more detail, we’re happy to help – language is no barrier here!

Photo: https://www.flickr.com/photos/valeriaastaburuaga/35512380606

Update: The text of the judgment is available at this link.

In a ground-breaking judgment the High Court has recognised in the Irish constitution a right to environmental protection consistent with the human dignity and well-being of citizens.

The proceedings, brought by the Cork-based environmental NGO Friends of the Irish Environment, concerned a challenge to a decision of Fingal County Council granting the Dublin Airport Authority a five-year extension to a 2007 planning permission for the construction of a third runway at Dublin Airport.

FIE argued various points of European and Irish law including that the Irish constitution granted implicit environmental protections.

While the challenge was ultimately unsuccessful on the technical ground that  FIE didn’t have legal standing to bring a challenge under the relevant legislation Mr Justice Barrett nevertheless dealt at some length with the issue of whether there was a personal right to environmental protection in the Constitution.

In summarising its conclusions, the court noted that until recently the exploitation of natural resources had few legal restrictions but lately awareness has grown of the limits to environmental exploitation and of the toll that industrial and technological progress had taken on the environment. Such a historical, exploitative approach, the court said, has been tempered in recent years through European law and through greater public concern about environmental protection and its connection with our quality of life.

It was in this context that the court went on to state:

A right to an environment that is consistent with the human dignity and well-being of citizens at large is an essential condition for the fulfilment of all human rights. It is an indispensable existential right that is enjoyed universally, yet which is vested personally as a right that presents and can be seen always to have presented, and to enjoy protection, under A1t. 40.3.1° of the Constitution. It is not so utopian a right that it can never be enforced.

…

Concrete duties and responsibilities will fall in time to be defined and demarcated. But to start down that path of definition and demarcation, one first has to recognise that there is a personal constitutional right to an environment that is consistent with the human dignity and well-being of citizens at large and upon which those duties and responsibilities will be constructed.

While the decision of the High Court is open to appeal it nevertheless represents a historic judicial recognition of environmental rights in the Irish Constitution.

FP Logue acts for Friends of the Irish Environment

 

Fred Logue recently delivered a presentation at the Law and the Environment 2017 conference which took place in UCC. A link to a video of his presentation is here.

The Court of Appeal today delivered its judgment in Stephen Minch v. Commissioner for Environmental Information where it found that the National Broadband Plan constitutes environmental information because the plan discussed a variety of options each of which would have significant environmental impacts.

The Court also found that while a report containing a financial analysis of various options for the delivery of broadband infrastructure was not in itself environmental information, it could nevertheless be considered as such if it was used within the framework of the broadband plan.

In making its decision, the Court of Appeal dismissed appeals by the Commissioner for Environmental Information and the Minister for Communications, Energy and Natural Resources against a decision of the High Court quashing a decision of the Commissioner for Environmental Information refusing to grant access to a financial report relating to the National Broadband Plan.

The Court observed that it seemed implicit from the Commissioner’s conclusions that the economic analyses contained in the report were used in the formation of the National Broadband Plan although there was no express finding in that regard. The Court observed that if this was accepted then the requested report itself must be environmental information.

Members of the public have a particular right of access to environmental information under EU law and the Aarhus Convention. What may be categorised as environmental information is an important aspect of the scope of this right and with the judgment in Minch, the Court of Appeal has clarified where the boundary lies between an idea that is merely an academic thought experiment and more definite plans, policies or programmes that are likely to affect the environment.

A copy of the judgment is available here.

FP Logue Solicitors acted for the applicant, Mr Minch in this case.

Photo credit: https://www.flickr.com/photos/smemon/

“Does an examination script contain personal data in such a way that an examination candidate might therefore ask the examination body for access to his own script on the basis of the Data Protection Directive?”

That is the question that the Court of Justice of the European Union was asked by the Supreme Court in Nowak.

Today saw the publication of Advocate General Kokott’s opinion and her view that exam scripts are personal data and in principle are accessible under the Data Protection Directive. She went on to find that the right of access is unlikely to be used as a way for candidates to look to correct errors in the exam under the right of rectification. She also went on to observe that the right of access and the definition of personal data itself is not to be construed merely in the context of the rights of objection, erasure and rectification.

So why is an exam script personal data?

The Data Protection Commissioner had argued that an exam script merely recorded information, i.e. the answers to questions and at the very most only the result of the exam could be construed as personal data.

Dismissing this narrow interpretation AG Kokott noted that rather than simply recording information independent of an individual, an exam script shows how a candidate thinks and works and is used to determine the strictly personal and individual performance of the exam candidate. She found support for this conclusion from the fact that a candidate would have a legitimate interest in objecting to the processing of his script for purposes outside of the context of the examination process.

AG Kokott provided an extensive discussion of the purpose of the right of access to personal data and noted that the definition of what is personal data could not be constrained by concerns about other matter such as the right of rectification.

She noted that accuracy and completeness must be judged in light of the context in which the personal data was created and that in the context of an exam, incorrect answers could not be said to be inaccurate or incomplete in the same way as, for example, would be the case if exam scripts were mixed up or parts of it were missing.

The issue of whether Mr Nowak was abusing the right of access given that he could have availed of an appeal process was also addressed. Again AG Kokott noted that the legislature had given precedence to Data Protection Rights. She also noted that when the GDPR  comes into effect there will be new provisions which qualify the right of access to protect the rights and freedoms of others and for other important public interest reasons.

However the mere existence of other national legislation that also deals with access to exam scripts could not give rise to an assumption that the subject access right was being misused nor could the possibility of circumventing the examination complaints procedure be a reason for excluding the application of data protection legislation.

This is a very thorough opinion and highlights the fundamental importance of the right of access as well as the need to adopt a purposive approach to the definition of what is personal data. The connection between the individual and the context is key rather than simply considering the nature of the information itself.

So what happens next?

The CJEU will issue its decision later this year in what is likely to be a significant precedent for interpretation of the GDPR.

Photo credit https://www.flickr.com/photos/comedynose

There are only 314 days to go; fewer if you subtract weekends and holidays. On May 25, 2018, the General Data Protection Regulation comes into effect.

This new European Union law, better known as the GDPR, will make fundamental changes to how our information is used and protected, giving greater rights to the individual and creating much more severe penalties for non-compliance.

This tight deadline creates severe pressures for businesses and other organisations such as charities which must completely review how they handle personal information by then.

Some are already in the process of doing this; the majority are scrambling to catch up.

It also puts all parts of the Irish State under significant time pressure.

Although the GDPR is a European law, parts of it require national legislation to implement. The Department of Justice and Equality is responsible for preparing a Bill to give effect to the GDPR in Irish law.

That Bill must then pass the Dáil and Seanad to put in place a new legal framework for enforcement, including a restructured Data Protection Commission. All of this must be done in good time prior to May 2018 to enable planning for the transition.

So far, the Department has produced a draft Heads of Bill, and with commendable speed the Oireachtas Joint Committee on Justice and Equality has already held three hearings examining this draft.

Most of the draft is relatively technical and uncontroversial. But the hearings have exposed aspects which could significantly undermine the position of individuals against the State.

On behalf of Digital Rights Ireland, I gave evidence to the Joint Committee about two of these issues.

The first is that the draft Head 23 proposes to exempt public bodies from fines for breach of the GDPR. The argument for the exemption is that these fines would be circular – that they would merely shuffle money from one public fund into another public fund.

But this ignores the experience in the United Kingdom where fines have been an important deterrent, encouraging public bodies to improve their information security.

The exemption also gives the wrong impression – that the public sector is to be held to a lower standard than others.

And it would be practically unworkable: as a matter of European law, one cannot have a situation where a public body such as a hospital is given preferential treatment over private market competitors. The Data Protection Commissioner, Helen Dixon, has described the exemption as a serious concern and pointed out that it would create a real burden for her office by forcing it to assess, in every case, whether a public body has private competition.

The second issue with the draft is that in Head 20 it gives the power to any Minister to make regulations in any area restricting any individual rights on the basis that this is necessary for any “important objective of general public interest”.

The effect of this is to create an open-ended power to limit the rights created by the GDPR on the basis of a ministerial signature only – with no requirement for any approval from the Dáil or Seanad.

There are, of course, situations where data protection rights should be restricted in the public interest. For example, the right to know what information is held about you does not apply where that would undermine a criminal investigation.

But until now those have almost always been provided for in primary legislation, subject to scrutiny by lawmakers.

An unconstrained power to make new restrictions will in practice mean government departments being the judge of what rights individuals should have against those departments and their agencies.

As with the proposed exemption from fines, the intention is that the state will receive more lenient treatment.

It is worth remembering that shortly before his retirement the last Data Protection Commissioner, Billy Hawkes, summed up his term in office by saying that public bodies had “in too many cases, shown scant regard by senior management to their duty to safeguard the personal data entrusted to them”.

He said that “the state system in general is not paying sufficient attention to its responsibilities for the quantum of data it holds on all of us” and that there was a need for “system-wide action” before “an inevitable crisis” was triggered.

Given this background, and the fact that the state holds so much data on us, it should be held to a higher, not a lower standard.

[This post is an edited version of an opinion piece by TJ McIntyre which ran in the Irish Independent on 8 July 2017]

Irish SMEs can now apply for Knowledge Development Box (KDB) tax relief without owning a patent if their invention is certified by the Patents Office to be novel, non-obvious and useful.  This is known under the KDB scheme as ‘intellectual property for small companies’.

All that is required is an application to the Patents Office for a KDB Certificate – which must include an opinion from a Patent Agent attesting that the invention is novel, non-obvious and useful. However, this is a new departure for Irish Patent Agents and it remains to be seen how this will work in practice.

Applying to accounting periods commencing on or after 1 January 2016, the KDB relief provides for a 6.25% corporation tax rate on profits arising from certain (1) patents, (2) copyrighted software, and (3) ‘intellectual property for small companies’ resulting from qualifying R&D activity carried out in Ireland. For more information see the Revenue website.

We are delighted to announce that Dr TJ McIntyre has joined the firm as a consultant.

TJ is a solicitor and a lecturer in law at University College Dublin specialising in information technology and privacy issues.

Recognised as one of Ireland’s leading experts in his field, TJ has advised a range of public and private sector organisations and is the current Chairman of Digital Rights Ireland, an advocacy group best known for successfully having the Data Retention Directive struck down by the European Court of Justice.

This appointment bolsters our information law practice and underscores our commitment to serving our clients as they adapt to the General Data Protection Regulation coming into effect from May 2018.

Our picture shows (l to r): Niall Rooney, partner, TJ McIntyre, consultant and Fred Logue, senior partner

Pic by Pearl Phelan

 

Registering a name as a trade mark gives the owner exclusive rights to prevent others using the same name (or a confusingly similar name) in a commercial way for particular goods and services.

The question often arises whether place names can be registered as trade marks for goods or services. In general, geographical names are not registrable as trade marks if the place is currently associated with the goods or services in the mind of the consumer, or it is reasonable to assume the place will be associated with these goods or services. The test is whether the name is descriptive of objective characteristics of the goods or services, such as place of production of the goods, subject matter of the goods, or place where the services are rendered.

The Cancellation Division of the European Union Intellectual Property Office (EUIPO) recently considered these principles and declared a trade mark for an Irish place name invalid for meat and lamb products, restaurants, food service, holidays and holiday accommodation.

The case relates to Achill Island off the coast of County Mayo, Ireland, the largest island in the country and a popular tourist destination.

Uaineoil Sléibhe Acla Teoranta, an Irish company of Achill Island, Co. Mayo is the owner of EU Trade Mark No. 013435573 ‘ACHILL’ which was registered on 31 March 2015 for “Meat and meat products; lamb meat and lamb meat products; lamb meals and constituents of meals predominantly of lamb” (Class 29), “Equestrian holidays, holidays and holiday accommodation, holiday information; restaurant services; catering services” (Class 43) and “Healthcare services; health resort services; convalescent homes services; saunas, beauty salon services, sanatorium, hairdressing services; massage services; nursing services; baths for hygiene purposes and turkish baths; flower arranging; manicure services; physiotherapy” (Class 44).

On 24 August 2015 CaorAcla Limited filed an application at the EUIPO to cancel this trade mark registration on grounds of invalidity. The main ground relied on was that ‘ACHILL’ is a known geographical term which is descriptive as it indicates the geographical origin of the goods and services covered by the trade mark registration.

Both sides filed detailed evidence in the case, and the EUIPO issued its decision on 18 April 2017.

Observing that the relevant consumer is the Irish average consumer and that the term ‘ACHILL’ refers to Achill Island in County Mayo, Ireland, the EUIPO found as follows.

Regarding the class 29 goods being meat, lamb meat, lamb meat products, the EUIPO observed from the evidence that “Ireland as a country is rife with sheep”. It is known for its sheep and sheep farming. There are sheep all over Ireland, and “sheep farming has taken place on Achill Island for a long time”. When lamb meat is sold to the consumer, the breed is seldom or never mentioned. On the other hand, geographical provenance is often mentioned when choice foods are offered for sale. Geographical provenance of foods has become important for consumers, for instance, consumers know that feed, such as grass and herbs in a specific place eaten by sheep and livestock, affects the taste of meat. Consumers may choose a meat from a certain place because they like that flavour and other qualities of the meat and increasingly geographical provenance is mentioned in sales and marketing. Taking into consideration that the Irish average consumer is aware sheep farming takes place all over Ireland, they would rightly assume it also takes place on Achill Island. Therefore, when viewing the mark ‘ACHILL’ in relation to the class 29 goods, the consumer will immediately understand that the goods are lamb meat from lambs reared on Achill Island, and would understand it as a term indicating the geographical origin of the goods. Therefore, ‘ACHILL’ is descriptive for the class 29 goods.

Regarding the class 43 services, the term ‘ACHILL’ is descriptive as an indication of destination, location and subject matter for holidays, holiday accommodation and holiday information services. It is also descriptive for restaurant and catering services, which go hand-in-hand with accommodation services. Furthermore, food is an important part of holiday experience and tourists will often connect foods with a certain place. However, equestrian holidays are very specific and cater to a limited number of individuals. There was no evidence that Achill Island is known for horse riding holidays and ‘ACHILL’ is not descriptive for these services.

Regarding the class 44 services, there was no evidence that Achill Island is known for such healthcare, health resort or personal care services, or that the consumer might view the term ‘ACHILL’ as an indication of geographical origin for such services. Therefore, ‘ACHILL’ is not descriptive for these services.

The EUIPO went on to find that ‘ACHILL’ is also devoid of distinctive character for the same goods and services for which the mark has been found to be descriptive.

The EUIPO noted that in these proceedings the trade mark owner did not claim nor did it provide any evidence of acquired distinctiveness of the mark ‘ACHILL’.

The EUIPO upheld the application for cancellation in part and declared the trade mark ‘ACHILL’ invalid for “Meat and meat products; lamb meat and lamb meat products; lamb meals and constituents of meals predominantly of lamb” (Class 29) and “Holidays and holiday accommodation, holiday information; restaurant services; catering services” (Class 43). The trade mark will remain registered only for “Equestrian holidays” (Class 43) and “Healthcare services; health resort services; convalescent homes services; saunas, beauty salon services, sanatorium, hairdressing services; massage services; nursing services; baths for hygiene purposes and turkish baths; flower arranging; manicure services; physiotherapy” (Class 44).

The decision is open to appeal to the EUIPO’s Board of Appeal until 19 June 2017, otherwise it becomes final after that date.

Update:  The registrant filed a Notice of Appeal to EUIPO against the decision on 15/06/2017.