Charles Flanagan (Laois, Fine Gael) | Oireachtas source

The purpose of amendments Nos. 100, 114 and 117, as tabled by Deputies Clare Daly and Wallace, is to allow not-for-profit bodies, organisations and associations to exercise data subject rights on behalf of individuals before the Data Protection Commissioner and the courts but without the permission or agreement of those individuals. That would amount to an extraordinary change in our law.

I acknowledge that Article 80(2) of the GDPR recognises that a member state may permit a not-for-profit body, association or organisation to take action on behalf of a data subject without the data subject’s mandate in its national law. That is not part of our national law or legal system, and compliance with the GDPR does not require such a provision. I cannot accept amendments Nos. 100, 114 and 117 for that reason, or the related amendments Nos. 116 and 123.

Section 116(8) provides that a court hearing a data protection action taken by a non-profit organisation or association on behalf of a data subject may not award compensation for any damage suffered. This restriction in the taking of compensation claims by a not-for-profit body, association or organisation seeks to discourage speculative compensation claims, especially where the data subject may be relieved of any risk that the costs of the action may be awarded against him or her. There are sound public policy reasons for discouraging the growth of an excessive compensation culture in data protection claims. As the Deputies will be aware, there is already concern about the level of compensation claims in Ireland, which is contributing to increasing insurance premium costs and affecting business across the board, especially SMEs. Amendment No. 115 tabled by Deputies Clare Daly and Wallace seeks to reverse this position by allowing not-for-profit bodies, associations and organisations that may act on behalf of data subjects to seek and claim compensation and the courts to award compensation. I am not in a position to accept the amendment.

Government amendment No. 122 seeks to replace section 127(7). The subsection was amended by the select committee to allow not-for-profit bodies, organisations and associations to seek compensation on behalf of data subjects for infringements of the law enforcement directives and allow the courts to award compensation. For the reasons I have outlined, I am seeking in the amendment to reinstate the earlier text of the subsection. The amended subsection is a broad departure and one that requires careful consideration that we have not given to it. I am not prepared to accept the broadly based nature of what is, in effect, a wide-ranging public policy change.

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