Month: February 2010

Total recall?

Section 2(1)(c)(ii) of the Data Protection Acts 1988 and 2003 provides that a data controller shall not process personal data in a manner incompatible with the purpose for which it was collected by that data controller.

Data protection law is not user-friendly and the full meaning of that rule is not immediately apparent; but one straightforward implication is that personal data cannot generally be disclosed to another party without the consent of the data subject.

Toyota is implementing a massive product recall due to complaints that some of its accelerator pedals stick, while other brake functions are inconsistent.

RTÉ News reported tonight that all Toyota owners would be contacted by letter in the coming weeks informing them of the recall, including those who bought the car second hand or by private sale. How would they contact such Toyota owners? The report said that the owners’ details would be obtained from the vehicle licensing authorities. How does this sit with section 2(1)(c)(ii)?

There are exceptions to the no-disclosure rule: for example, section 8(d) allows disclosure where it is urgently required to prevent injury or damage to the health of a person or serious loss of or damage to property. The important word is “urgently” and guidance from the Irish Data Protection Commissioner says:

This provision does not authorise disclosures of personal information for general health research purposes, or for other medical purposes where there is no immediate or urgent risk to someone’s life or health. In such cases, the normal data protection rules apply, including the obtaining of consent where necessary. (My emphasis)

So, section 8(d) does not permit disclosure.

Section 8(e) permits disclosure when it is required by or under any law or order of court. One such law (with thanks to TJ for pointing it out) was the Finance Act 1993 (section 60) Regulations 1996, which prescribe motor manufacturers and distributors for the purposes of section 60(3) of the Finance Act 1993, thereby providing them with the permission to inspect the records of the vehicle licensing authorities.

The issue of disclosing car owner details to a manufacturer for the purposes of a safety recall has arisen in the past and in Case Study 3/99 the Data Protection Commissioner was satisfied that disclosure was permitted on the basis of the 1996 Regulations.

However, the 1996 Regulations have been revoked and supplanted a number of times over the years, resting with the Finance Act 1993 (Section 60) Regulations 2005. The 2005 Regulations do not mention motor manufacturers and distributors, unlike those regulations passed since 1996. In Case Study 3/99, the Data Protection Commissioner expressed concern at the unqualified access suggested by section 60 and recommended it be reviewed. Could this be why motor vehicle manufacturers and distributors were excluded from the 2005 Regulations?

If so, and if disclosure has not been permitted elsewhere in the law when the change was made in 2005, on what basis can the vehicle licensing authorities now disclose Toyota owner details?

Facing up to mortgage arrears

FLAC is an Irish human rights organisation which advocates equal access to justice. It also provides limited legal services through the legal advice centres which give it the FLAC acronym.

FLAC is sometimes confused with the system of legal aid in Ireland available for criminal matters and for a very limited range of civil matters. Legal aid is state-funded legal representation; FLAC is a voluntary organisation which provides initial legal guidance but cannot represent people.

While FLAC is an independent organisation and not a quango, its evening advice centres are hosted in Citizens Information centres. They provide a service for all manner of legal issues where legal aid may not be available and where the individual cannot afford legal advice.

A contemporary hot topic at FLAC sessions is personal debt. In most circumstances, there is little a solicitor can do when arrears are properly due and cannot be met. However, there are practical steps that can and should be taken to deal with the matter. To that end, FLAC have published a useful guide to mortgage arrears which explains the terminology and issues and provides suggestions as to how arrears should be handled. Karl Deeter also outlines, in today’s Irish Independent, practical steps which a borrower might arrange with lenders.

Borrowers in difficulty should note that repossession does not follow from one month of difficulty. It is clear from repossessions that have occurred in the past two years that a long period of default usually precedes a repossession order, often coupled with a lack of communication from the borrower and no appearance in court. In fact, judges are showing particular lenience toward self-representing borrowers and offering numerous opportunities to reach some accommodation with their lender. Borrowers in difficulty should not, therefore, ignore correspondence from their lender but should follow the advice mentioned at the earliest opportunity.


IP everywhere

Since 2004 most intellectual property litigation in Ireland has taken place in the Commercial Court, which is not a true court with jurisdiction separate to that of the other courts but rather is a list of the High Court.

The Commerical Court was established following the recommendations of the Committee on Court Practice and Procedure, of which my late father was a member, and offers litigants an involved case management system and fast-tracked procedures. For IP claims, there is no minimum claim value to qualify for entry. However, costs in running a Commercial Court case are a multiple of what one might expect in an ordinary High Court case.

Obviously not all disputes require such firepower but we don’t see much IP litigation in the District or Circuit Courts, where costs are lower and the lifetime of a case reasonably short.

One recent example of such everyday IP litigation concerns the payment of damages to a broadcaster for showing pay-tv in public without the appropriate subscription (ie. licence). From the Kerryman:

[A] hotel has been ordered to pay €5,174 in royalty [sic] to British Sky Broadcasting who told the court that the hotel had screened sports events in the bar without a commercial contract from the broadcaster.

Judge Ray Fullam heard that an inspector from IMRO had visited the hotel on four occasions in 2006 and 2007. During the inspections, the court heard, sporting events including English premiership soccer matches and Heineken Cup rugby games were showing on a television in the residents’ bar.

The hotel previously held a contract with Sky but it had not been renewed.

Counsel [for the hotel] argued that as the television in question was in a premises where sleeping accommodation is provided and amenities are exclusively or mainly provided for residents, for which there is no discretionary charge, the hotel was exempt from the need for a contract under section 97 of the copyright act.

Judge Fullam found against the hotel and granted an injunction barring the hotel from showing matches on Sky without a contract.