16 03 2021 Insights Litigation & Dispute Resolution

DAR; A sharper sword than Discovery?

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Data Protection Commission Response to the High Court Judgement of Mr. Justice Barr in the case of Dudgeon –v- Supermacs Ireland Limited [2020] IEHC600.

In late 2020 Mr. Justice Barr in a noteworthy decision ruled that Supermacs were not obliged to disclose CCTV recordings of an incident giving rise to Circuit Court proceedings.

The Plaintiffs had requested discovery from Supermacs and same was contested by the Defendant restaurant and the matter ultimately came before Mr. Justice Barr for adjudication. The Plaintiffs sought an order to compel the Defendants to adhere to the discovery request to supply CCTV of the incident giving rise to the proceedings.

It was the contention of the Defendants that the primary motive for the Plaintiff now seeking CCTV footage was to verify her own version of events in preparation for her giving direct evidence at trial.

Mr. Justice Barr agreed with the Defendant’s contention that discovery was only being sought to verify the Plaintiff’s plea that she had fallen to the ground in the course of the incident giving rise to the proceedings and the application was refused.

This judgement raised queries in the minds of lawyers & litigants alike as to what the Data Protection Commissioners attitude would be to a similar situation.

Response of the office of the Data Protection Commission

The Office of the Data Protection Commission published a note on the 10th of February 2021 as to how the judgement in Dudgeon –v- Supermacs Ireland Limited may effect access requests under article 15 of the GDPR and Section 91 of the Data Protection Act 2018 specifically where the request relates to CCTV recordings.

The Data Protection Commissioner in the guidance note highlights the importance of the distinction between access requests and discovery in litigation.

The office of the DPC point out in clear terms that the rights of one’s own personal data is enshrined in the charter of fundamental rights of the EU and also in the GDPR regulations, they are clear on the fact that the decision of Mr. Justice Barr is in the context of the law of discovery and certainly not in reference to or related to data protection rights.

It is my view that the note of the DPC is somewhat bullish; It’s drafted in clear and concise terms that a person’s rights under the GDPR and indeed under the Charter of Fundamental Right of the EU are unfettered and unaffected in the context of the dicta of Mr. Justice Barr in the case of Dudgeon –v- Supermacs Ireland Limited.

The Road ahead

The upshot of all of this, it occurs to me, is that a Data Access Request may now be a more straight forward route for Plaintiffs when seeking CCTV as it seems to be the case that the DPC is clear that this is a fundamental right of a data subject and their motive or rationale for seeking the data is not a consideration under the GDPR like it would be for a Judge in the context of a discovery request as was the case in Dudgeon –v- Supermacs Ireland Limited.

That said, Plaintiffs and Defendants alike should be aware that there are limitations under the GDPR in terms of Data Access Requests for CCTV and other information in particular under Section 60 of the 2018 Act which negates somewhat against a free run for our prospective Plaintiffs.

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