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Judicial Review of the Powers of the Office of the Data Protection Commissioner

PRACTICE AREA GROUP: Telecommunications, Regulatory Risk Management and Compliance, Financial Regulation
DATE: 20.06.2011

The Data Protection Commissioner’s office received a number of complaints from people who had received unsolicited mobile phone text messages from Realm Communications offering a free stay in one of 20 Irish Hotels. If recipients of the text messages wished to avail of this offer they were required to telephone a premium-rate phone number.

Under the EC (Electronic Communications Networks and Services) (Data Protection and Privacy) Regulations 2003 it is an offence for a person to send unsolicited communications for the purposes of direct marketing by electronic means without the consent of the recipient. Each communication gives rise to a separate offence. At the time that these communications were sent the applicable penalty was, on summary conviction, a fine not exceeding €3,000.

Further to the complaints which the Data Protection Commissioner received, his office issued 60 summonses against Realm Communications in the District Court.

Realm applied for and was granted leave to seek judicial review of the Commissioner’s decision to institute summary proceedings without first attempting to negotiate a settlement with the person who is alleged to be in breach of the data protection legislation.

The Data Protection Commissioner responded that the legislation did not give rise to any prior requirement to mediate and that his office was free to deal with enforcement issues as it saw fit whether it be with or without recourse to litigation. The Commissioner pointed out that mediation would not be effective for repeat offenders.

During the judicial review proceedings in the High Court, Mr Justice McCarthy found that there was nothing in the Data Protection Directive or applicable subordinate legislation which obliged Member States to provide for attempted amicable resolution prior to enforcement. The Commissioner is therefore free to take enforcement action in relation to breach of Data Protection legislation whether without first attempting to amicably resolve the issue with the alleged wrongdoer.

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