Ireland’s battle over Big Tech moves closer to home

By Joshua Taggart, Junior Consultant

Ireland has typically been seen as soft on Big Tech, which has resulted in friction between the Irish Government and its European partners. Criticisms have typically come from those who are concerned by Ireland’s economy being so dependent on a few tech giants, as well as privacy campaigners and civil rights activists who believe that such companies are doing more harm than good for the general public.

In the wake of such criticism, the Government has thrown petrol on the flames by introducing a new amendment to the Courts and Civil Law (Miscellaneous Provisions) Bill 2022 which will prohibit the disclosure of ‘confidential’ information in data protection cases.

On the face of it, this seems like an uncontroversial change to a vague-sounding piece of legislation (I mean, it’s called ‘Miscellaneous Provisions’ for goodness’ sake!). However, opponents of the move have accused the Government of sneaking in a last minute change to the Bill that could ‘muzzle’ potential critics of Big Tech.

The amendment alters the Data Protection Act 2018 to prevent complainants from revealing confidential information during complaints to the Data Protection Commission (DPC). The trick is that the DPC itself will define what is ‘confidential’. That opens up a huge can of worms regarding the DPC’s impartiality and interests, as the DPC has historically been viewed as soft towards the companies who are based in Dublin, including Meta, Twitter, TikTok, Amazon and others.

Earlier this year, the DPC was slammed by the European Data Protection Board for its decision on a case involving Meta sending user data to the United States – the EDPB ended up forcing the DPC to throw out the original ruling and implement its own findings, a decision which almost never occurs and showed just how much the DPC is being scrutinised by its partner agencies.

Data protection campaigner Max Schrems and his Austrian-based outfit ‘None of Your Business’ (NOYB) has been vocal in his outrage at the amendment, saying “It is mind blowing that this would happen in a European country.”

The amendment exposes several thorny subjects for the Irish Government as well as its European counterparts. First, the case highlights the potential contradiction between serving its economic interests (staying cosy with Big Tech to ensure they stay in Ireland) and serving the interests of citizens who are reliant upon the DPC to advocate for their interests against such companies.

It also re-opens the wound which the DPC received after they were accused of lobbying in Brussels on Meta’s behalf. The European Union is pushing hard to bring Big Tech under their control through legislation such as the Digital Markets Act (for antitrust) and Digital Services Act (for online safety and content moderation) as well as stricter enforcement of General Data Protection Regulations (GDPR). That falls apart if Ireland continues to give Big Tech companies an easy pass, marking the island nation as a weak link in the European chain which can stall investigations, dilute fines and penalties or act as a buffer against European tech enforcement.

This latest amendment to the Courts and Civil Law Bill may not be as bad as civil activists have made it out to be. There is no guarantee that the DPC will use its discretion to be overly harsh against complainants, or that the DPC will be negligent in any way towards its duty to investigate GDPR violations fairly. However, it’s not a good look for the Irish Government to introduce an amendment at Final Stage with little to no warning which could affect the very foundations of data protection in the European Union. The picture being painted is one where the European Union heads in one direction, and Ireland stubbornly drags its heels and faces the other way.

The introduction of such a broad amendment at such a late hour is questionable behaviour from any government, but for the Irish Government to do so in the context of cracking down on Big Tech is a smoking gun. Dublin will have to demonstrate that the DPC is both willing and able to perform their functions or Ireland may find itself increasingly ostracised by a Brussels coalition which is turning up the heat on Big Tech.

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