The Supreme Court, in EMI Records (Ireland) Ltd & Ors v Data Protection Commissioner and Eircom Ltd [2013] IESC 34, 3 July 2013, has confirmed that an Enforcement Notice issued by the Data Protection Commissioner (DPC) will be invalid if reasons are not given for same. The decision also illustrates when judicial review, rather than statutory appeal, of a decision of the DPC may be permissible.

The Facts

The applicants, music record companies, had brought earlier proceedings against Eircom (the notice party), arising out of alleged unauthorised and unlawful sharing of copyright material facilitated by internet services provided by Eircom. Those proceedings were settled, but the DPC claimed that implementation of the settlement agreement might breach data protection law. The parties to the settlement applied to the court for a ruling on the consistency of the settlement with data protection law, which the DPC declined to participate in. The High Court ruled that implementation of the settlement would not be in breach of any relevant law.

However the DPC remained of the view that the implementation of the settlement would be unlawful and issued an Enforcement Notice to Eircom under the Data Protection Acts 1988 and 2003 (the Acts). Eircom appealed against the Enforcement Notice, as permitted by the same statutory regime, and the record companies sought to be joined in that appeal.

Before any questions came to be determined in that appeal, the record companies commenced judicial review proceedings seeking to have the Enforcement Notice quashed. The High Court agreed with the record companies' case, and quashed the Enforcement Notice. In these proceedings, the DPC appealed to the Supreme Court against that finding.

Two issues arose for determination in these proceedings: 

  1. whether judicial review was appropriate in the light of what was alleged by the DPC to be the more appropriate remedy of statutory appeal, and 
  2. whether the trial judge was correct to quash the Enforcement Notice on the basis of absence of reasons.

The Decision

The Supreme Court dismissed the appeal by the DPC, and affirmed the order of the trial judge that the record companies were entitled to pursue judicial review proceedings, despite the possible availability of a statutory appeal.

The Court held that: 

  1. Judicial review was more appropriate than statutory appeal in the circumstances, as the record companies affected only had a conditional entitlement to appeal (i.e. the record companies could only be joined as a notice party in any statutory appeal taken by Eircom, as the Enforcement Notice had been directed solely at Eircom); and
  2. That the Enforcement Notice was invalid because no reasons had been given in the notice concerned. The Court held that even if the reasons could be inferred this was not sufficient, as section 10(4)(a) of the Acts expressly requires that the notice specify the reasons for the DPC having formed the opinion that there has been a breach.

So far as the question as to the type of reasons which need to be given is concerned, the Court clarified that a party is entitled to sufficient information to enable it to assess whether the decision is lawful, and if there is a right of appeal, to enable it to assess the chances of success and to adequately present its case on the appeal.

Commentary

This case confirms the obligation of the DPC to give reasons in an Enforcement Notice in order for it to be upheld by the courts. It also clarifies the correct approach where a party wishes to challenge a decision of a public body. Clarke J. noted that it was clear from Hogan J.'s judgment in Koczan v Financial Services Ombudsman [2010] IEHC 407 that: "The default position is that a party should pursue a statutory appeal rather than initiate judicial review proceedings…However, there will be cases, exceptional to the general rule, where the justice of the case would not be met by confining a person to the statutory appeal and excluding judicial review." The Supreme Court found that the present case was one of those exceptional cases, as the record companies affected had no statutory right of appeal against the DPC's decision.