Aodhán Ó Ríordáin (Dublin Bay North, Labour) | Oireachtas source

We are resolutely opposed to amendments Nos. 2 and 18, which together introduce section 26A and provide an overbearing and easily abusable opportunity to stifle democratic oversight. Subsection (5) of the proposed section encapsulates the problem the Minister of State is curating. Under it, "confidential information" means "information the disclosure of which could, in the opinion of the Commission, reasonably be expected to prejudice the effectiveness of the performance of a relevant function". Effectively, the Data Protection Commission, DPC, would be entitled to self-certify which of its own processes cannot be revealed by complainants and other parties. Transparency is supposed to be the whole point of GDPR, yet here we have the potential criminalisation of people or bodies for discussing the details of their own GDPR cases. I hope the Minister of State sees the problem. A conflict is being created between the requirement of transparency under GDPR and the DPC's demands for a complete shutdown of transparency during the process.

Free speech and transparency are at the heart of any democracy, and section 26A is an attack on free speech, transparency and democracy. It seems abundantly clear that the main beneficiaries of this legislation will be the big tech companies, which have a long track record of abusing commercial confidentiality protections to undermine public debate as well as a long history of abusing the privacy and confidentiality of their customers’ data. Big tech companies such as Meta and Google consistently try to undermine GDPR by attacking non-profits and making spurious claims of commercial sensitivity around information in the public domain. To provide an example, I have a letter with me from Mr. Max Schrems describing being the subject of consistent and repeated unsuccessful attempts by Meta and the DPC to prevent the European centre for digital rights from participating in GDPR procedures. Section 26A can only be seen as an attempt to give big tech and the DPC protection from the scrutiny of normal journalistic and societal oversight.

We are acutely aware of the importance of the tech industry and its corporate tax revenues but we cannot allow such considerations to undermine the foundations of democratic oversight. We have had representations from Amnesty International and the Irish Council for Civil Liberties, ICCL, which have identified the serious threat to the democratic process posed by these amendments. There is a significant discrepancy between the practice of the DPC in Ireland and that of other national data protection authorities. What the Government is proposing will make it even harder to get the DPC to share information with third parties, including our partners in Europe, seriously undermining our credibility in this area.

Additional criticism of the proposed section 26A includes: no way of challenging overly broad claims of confidentiality by the DPC or big tech; the creation of a conflict between the requirement of transparency under GDPR and the DPC being allowed to implement a complete shutdown of transparency during the process; the creation of a direct conflict with anti-strategic lawsuit against public participation, or anti-SLAPP, legislation, effectively introducing a free pass for big tech to engage in SLAPP actions relating to GDPR through claims of commercial sensitivity; it is questionable whether the section can extend a duty of secrecy under Article 54(2) of the GDPR to third parties, given that, as we understand it, this is not part of EU law; isolating the DPC from oversight by the Executive, Legislature and Judiciary; and territorial jurisdiction is unclear.

We have had detailed representations from a number of respected non-partisan experts and GDPR-related organisations throughout Europe. We ask the Minister of State to heed the warning, withdraw the amendments and revert with a different proposal that can be properly debated.

I do not invoke the notion of a threat to free speech lightly but I ask the Minister of State what the source of this amendment is. Who lobbied for its inclusion? Who benefits from this? I caution him that he risks becoming the witting or unwitting instrument of the big tech-led subversion of the whole point of GDPR, all supposedly in the name of trying to make the DPC’s life easier by not having to subject itself to normal public scrutiny. These are bad amendments. If we pass the inclusion of section 26A, we will effectively undermine all democratic oversight of the administration of justice in these important cases.

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