Law Reform: Privacy and Technology in the Digital Era

On 5 June 2019, the Law Reform Commission launched its Fifth Programme of Law Reform which includes proposals to consider “Privacy and Technology in the Digital Era”.  This important project will examine the impact of technological developments on the law and will consider how technology has affected traditional understandings of privacy. It will focus on pending and potential further areas of legislative reform in Ireland and will be worth monitoring for any organisation engaged in activities that may be affected by such laws.

Four aspects of the Commission’s proposed project are especially notable.

Privacy: Surveillance and the Interception of Communications

The Commission will, in the context of the internet era, reconsider the recommendations in its 1998 Report on “Privacy: Surveillance and the Interception of Communications”.  That Report examined a number of concerns related to the danger that then-modern forms of surveillance could pose to the privacy of citizens.

The 1998 Report also recommended the introduction of new criminal offences to deal with more sophisticated forms of illicit surveillance and methods of interception of communications.  In particular, the Commission recommended the enactment of a number of criminal offences to prohibit the placing of surveillance devices in private dwellings and the use of surveillance devices to spy on private conversations, as well as trespassing on a private dwelling with a view to obtaining personal information.  The 1998 Report also called for regulatory safeguards in the context of certain types of Garda surveillance in both private and public places.  Some of those recommendations have been enacted in the Criminal Justice (Surveillance) Act 2009 which requires that police surveillance must be of the least intrusive means available and proportionate to its objectives, and must not be of a duration longer than is reasonably required to achieve its objectives.

Harmful Communications and Digital Safety

The Commission will also consider the impact of its (Fourth Programme) work on “Harmful Communications and Digital Safety”.  This 2016 Report recommended the creation of criminal offences related to the posting online of intimate images without consent, and intentional ‘victim-shaming’.  It also recommended a new statutory oversight system and called for the establishment of a Digital Safety Commissioner to promote digital safety and to develop and oversee an efficient take-down procedure for any offending content.  These recommendations have not yet been acted upon; however, they have been included in the Digital Safety Commissioner Bill 2017 and the Harassment, Harmful Communications and Related Offences Bill 2017, which are both currently before Dáil Éireann.

Impact on Substantive Law

The Fifth Programme proposed project will further assess the impact of technology on substantive law, with particular regard to the future impact of the “Internet of Things”. This will include how certain automated forms of transport (such as autonomous vehicles and vessels) will be governed by (for example) road traffic and maritime laws, as well as product liability legislation. The use of these technologies is expected to grow considerably in the coming years which will likely require legal reforms. 

Impact of Procedural Law

The Commission will also consider the use of online dispute resolution (“ODR”).  The project will consider the potential of ODR to remedy some access-to-justice issues and the potential impact of ODR on traditional models of legal advice and litigation and on the quality of legal adjudication in general.

This project within the Commission’s Fifth Programme will be an important and timely contribution to ensuring that Irish law and Irish legal procedures keep pace with rapidly developing technology.

Also contributed by Andy McDonnell and Stephen Traynor.

This document has been prepared by McCann FitzGerald LLP for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.