Alice-Mary Higgins (Independent) | Oireachtas source

I move amendment No. 6:

In page 10, line 8, to delete "section 12(2)(a)(ii)(VIII)" and substitute "section 12(2)(a)(ii)(III) or (VIII)".

Amendment No. 6 refers to the interaction with the Social Welfare Consolidation Act 2005. All of these amendments are being proposed to resolve a problem of legal incompatibility arising from a 2015 European Court of Justice case between Google Spain and a Spanish citizen. I am addressing the same issue in sections 6 and 12 and in a later section as well.

I will quote from section 12 because it is the easiest one to use to make my point. It provides that one of the grounds on which data sharing will be permitted will be, "to avoid the financial and administrative burden that would otherwise be imposed on the second mentioned public body or on another person were the second mentioned public body to collect the personal data directly". The key point is that European Court of Justice rulings make it very clear that "the financial and administrative burden", as it is phrased here with a pejorative slant, is not in itself an acceptable basis on which to share data.

I recognise that we are talking about a combination of a public body's performance of its functions and its desire to avoid financial and administrative costs. It is clear that the sharing of the personal data of individuals between public bodies will be allowed any time it happens to be a bit cheaper or handier for that public body. Therefore, this extraordinarily wide provision will apply under almost all circumstances.

The European Court of Justice has previously recognised that this system does not work if a public body can simply say it is financially and administratively easier for it to get the data without having to go through any other normal process. Such an approach does not stand up in the rulings of the European Court of Justice. In the case involving Google Spain and other search engines, they argued that it was administratively and financially burdensome on them to exercise and vindicate the right to be forgotten of the individual or data subject. It was ruled that it would never be necessary or proportionate for them to act on that basis.

We will come back to the question of what is necessary or proportionate later in this debate. It is certainly the case that financial and administrative ease is not a necessary or proportionate ground. The section of the Bill I am seeking to amend does not stand up legally. We have case law in respect of it. When I met the departmental officials, it was acknowledged that there may need to be movement in this regard. I am interested to hear what the Minister of State is proposing in that context. I will listen to those proposals before I expand on our concerns.