Saturday, January 10, 2009

Data Protection Commissioner may prosecute for spam without seeking negotiated settlement - High Court

As we've seen before ("How to be sued by space cadets") Realm Communications has been trying to stymie prosecutions being brought against it for spam. Their claim has been that the Data Protection Commissioner is under a statutory duty to seek an amicable resolution before resorting to the heavy guns of a criminal prosecution.

In the recent statutory instrument amending data protection law the Minister sought to preempt this argument for future cases, by including a provision stating that:
If of the opinion that the circumstances relating to a complaint investigated under Regulation 17 involve the commission of an offence under these Regulations, the Commissioner may bring and prosecute proceedings for the offence without attempting to bring about an amicable resolution of the complaint.
But this still left the position in doubt in respect of offences committed and prosecutions commenced before this change.

The High Court has now rejected the argument that an amicable resolution must be sought, McCarthy J. holding (according to the Irish Times report) that "the absence of resolution attempts did not erase the fact that regulations were breached". This is an unsurprising result - the legislation certainly doesn't expressly provide that there must be an attempt at settlement, and while it might be best practice to do so, a strict duty would tie the hands of the DPC (especially when dealing with repeat offenders) and would undermine the effectiveness of the criminal penalty. But though the result might have been predictable the ruling is still useful, particularly as it clarifies the position in respect of other pending prosecutions. (Edited to add: full judgment now available here.)

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