High Court - 2024 IEHC 337
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| High Court - 2024 IEHC 337 | |
|---|---|
 | |
| Court: | High Court (Ireland) |
| Jurisdiction: | Ireland |
| Relevant Law: | Data Protection Act, 2018 |
| Decided: | 31.05.2024 |
| Published: | |
| Parties: | Barth O' Neill Revenue Commissioners |
| National Case Number/Name: | 2024 IEHC 337 |
| European Case Law Identifier: | |
| Appeal from: | |
| Appeal to: | Unknown |
| Original Language(s): | English |
| Original Source: | The Courts Service of Ireland (in English) |
| Initial Contributor: | Gauravpathak |
The High Court refused an interim application for anonymized proceedings in a judicial review, noting that the constitutional principle of administering justice in public outweighed the data subject’s privacy concerns.
English Summary
Facts
The applicant is the data subject who files his income tax in Ireland. The controller is the Irish tax authority, the Revenue Commissioner.
The data subject sought to challenge the controller’s refusal to erase data related to his 2007 tax return after they invoked the right to erasure under Article 17 GDPR. The data subject had previously reached a settlement with the tax authority in 2016 regarding tax assessments. In 2021, he requested the erasure of his 2007 tax data, which the controller refused, citing legal obligations under the Taxes Acts, which are also recognized in Article 17(3)(b) GDPR. The controller stated that the data subject could approach the Data Protection Commission if he was not in agreement with the decision of the controller.
Instead of approaching the Data Protection Commission, the data subject applied for judicial review of controller’s decision before the High Court. In this case before the High Court, the data subject filed an application to have the proceedings heard in camera or anonymized. The data subject argued that if the proceedings were not anonymized or held in camera, it would render his substantive relief pointless, as the very information he sought to protect would become public through the court process. Further, he argued that public proceedings could create an impression that he was a non-compliant taxpayer, potentially causing irreparable damage to his reputation.
Holding
The High Court rejected the data subject’s application for in camera proceedings or anonymization.
The court found that the constitutional principle of administering justice in public outweighed the data subject’s privacy concerns. It determined that the data subject’s case did not meet the exceptional circumstances required to justify a departure from public proceedings, as outlined in previous case law.
In this case, the High Court noted, the data subject had already brought an application for judicial review in his name without seeking to anonymise that application. The fact that this information was already in the public domain through these and other proceedings diminished the argument for privacy protection. Accordingly, the Court refused to allow data subject’s case to be held in camera, or those proceedings to be anonymized.
The court also ruled that Section 156 of the Data Protection Act 2018, which the data subject invoked to support his request for in camera proceedings, was not applicable in the case. Section 156 of the Data Protection Act 2018 provides that any part of proceedings under that Part of the law may be heard otherwise than in public. This includes the types of proceedings discussed under Section 117(4) of the Data Protection Act 2018, those being relief by injunction or declaration or compensation for damages. However, this provision does not include judicial review challenges such as the one brought by the data subject in this case.
Comment
The High Court's role in this case is interesting because it is both the controller of the personal data involved in the judicial proceedings and the decisionmaker.
The decision implies that the court has a legal basis to process the personal data in a public hearing. This legal basis would likely come from Article 6(1)(c) GDPR: processing is necessary to comply with its legal obligation to hear cases.
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English Machine Translation of the Decision
The decision below is a machine translation of the English original. Please refer to the English original for more details.
APPROVED
THE HIGH COURT
[2024] IEHC 337
Record No. 2021/500JR
BETWEEN/
BARTH O’NEILL
APPLICANT
-AND-
THE REVENUE COMMISSIONERS
RESPONDENT
st
JUDGMENT of Mr. Justice Conleth Bradley delivered on the 31 day of May 2024
1 INTRODUCTION
Preliminary
1. This is an interlocutory application in which the Applicant seeks either (a) an order
that his substantive judicial review proceedings be heard otherwise than in public (i.e.,
in camera) or (b) an order directing the anonymisation of that challenge.
2. The substantive proceedings concern the Applicant’s challenge to the Respondent’s
refusal to erase data in relation to his 2007 tax return, pursuant to the right to erasure
(“right to be forgotten”) contained in Article 17 of the General Data Protection
Regulation (“GDPR”). 1
1Article 17 GDPR provides as follows:
“(1) The data subject shall have the right to obtain from the controller the erasure of personal data concerning
him or her without undue delay and the controller shall have the obligation to erase personal data without
undue delay where one of the following grounds applies: (a) the personal data are no longer necessary in
relation to the purposes for which they were collected or otherwise processed; (b) the data subject withdraws
consent on which the processing is based according to point (a) of Article 6(1), or point (a) of Article 9(2), and
where there is no other legal ground for the processing; (c) the data subject objects to the processing pursuant
to Article 21(1) and there are no overriding legitimate grounds for the processing, or the data subject objects to
the processing pursuant to Article 21(2); (d) the personal data have been unlawfully processed; (e) the personal
data have to be erased for compliance with a legal obligation in Union or Member State law to which the
controller is subject; (f) the personal data have been collected in relation to the offer of information society
services referred to in Article 8(1).
(2) Where the controller has made the personal data public and is obliged pursuant to paragraph 1 to erase the
personal data, the controller, taking account of available technology and the cost of implementation, shall take
reasonable steps, including technical measures, to inform controllers which are processing the personal data
that the data subject has requested the erasure by such controllers of any links to, or copy or replication of,
those personal data.
2Leave to apply for judicial review: 31 May 2021
st
3. Prior to the issuing of this interlocutory motion, on 31 May 2021 this court
(O’Moore J.) granted the Applicant leave to apply for judicial review to seek a
number of reliefs, including: (a) an order of mandamus directing the Respondent to
comply with the GDPR, in particular Articles 5, 6 and 17, the EU Charter, in
particular Article 8, the Taxes Consolidation Act 1997, in particular section 851B, the
constitutional right to privacy and the doctrine of proportionality with respect to the
right to be forgotten, and data processing generally with respect to the tax year 2007;
(b) an order of mandamus requiring the erasure (or reduction to zero) of all personal
data concerning the Applicant held by or on behalf of the Respondent without undue
delay and/or for four or six years, or such other period as the court may direct, in
accordance with the GDPR, in particular Articles 5, 6 and 17, the EU Charter, in
particular Article 8, the Taxes Consolidation Act 1997, in particular Section 851B, the
constitutional right to privacy, and the doctrine of proportionality with respect to the
right to be forgotten, and data processing generally; (c) in the alternative, an order
pursuant to section 117 of the Data Protection Act 2018, Article 17 of the GDPR, and
(3) Paragraphs 1 and 2 shall not apply to the extent that processing is necessary: (a) for exercising the right of
freedom of expression and information; (b) for compliance with a legal obligation which requires processing by
Union or Member State law to which the controller is subject or for the performance of a task carried out in the
public interest or in the exercise of official authority vested in the controller; (c) for reasons of public interest in
the area of public health in accordance with points (h) and (i) of Article 9(2) as well as Article 9(3); (d) for
archiving purposes in the public interest, scientific or historical research purposes or statistical purposes in
accordance with Article 89(1) in so far as the right referred to in paragraph 1 is likely to render impossible or
seriously impair the achievement of the objectives of that processing; or (e) for the establishment, exercise or
defence of legal claims.”
3 Order 84B of the Rules of the Superior Courts 1986, directing the Respondent to erase
(or reduce to zero) all records relating to the year 2007 and such additional years as
the court deems lawful.
4. The Applicant also sought and was granted leave to apply for a number of ancillary
reliefs at paragraphs (d) to (p) of the Statement of Grounds.
The in camera/anonymisation application
5. In summary, the application before me is essentially an interlocutory application,
issued post-leave, and comprised in two notices of motion (dated 5 December 2022
th
and 12 December 2023) where, as mentioned, the Applicant seeks an order that the
substantive proceedings be either heard in camera or anonymised. Initially, the
Applicant relied inter alia upon the inherent jurisdiction of the High Court, Article 43
of the Charter of Fundamental Rights of the European Union (“the Charter”) and
Article 13 of the European Convention on Human Rights and Fundamental Freedoms
(“the ECHR”), and in terms of the later amendment, which sought to have the hearing
heard otherwise in public (in camera), the Applicant also seeks to invoke section 117
and section 156 of the Data Protection Act 2018 (“the 2018 Act”).
6. As just mentioned, by Notice of Motion dated 5 December 2022, the Applicant
sought inter alia an “order that in accordance with the inherent jurisdiction of the
court and the Applicant’s right to an effective remedy, under Article 47 of the EU
Charter of Fundamental Rights and Article 13 of the European Convention on Human
Rights, that these proceedings are anonymised using initials that do not relate to the
Applicant’s name.”
4 th
7. By further Notice of Motion dated 12 December 2023, the Applicant sought an
amendment to the earlier motion in the following terms: “[t]hat the proceedings be
held otherwise than in public as allowed for under … section 156 of the Data
Protection Act 2018.”
8. The Applicant is a litigant in person. Eoin Clifford SC, together with David Quinn
BL, appeared the Respondent.
Terms of settlement: 13 June 2016
9. The Applicant reached terms of settlement (comprising nine numbered paragraphs)
with the Respondent on 13 June 2016.
10. The first paragraph of the terms of settlement provided for payments in relation to
CGT and income tax both of which assessments were recorded as being under appeal
by the Applicant. The second paragraph of the settlement provided for the manner and
time period of the payment of the sums referred to in the first paragraph.
11. The fourth paragraph of the settlement inter alia provided that when the full amount
of the sum referred to had been discharged in accordance with the terms of paragraph
2, “the Respondent, in consideration of the Appellant’s financial position, shall write
out the balance of the assessments as being uncollectable.”
12. By e-mail dated 22 February 2021 from an official in the Data Protection Unit of the
Respondent, the Applicant was inter alia advised that “[a]rticle 17 of the GDPR is not
5 an absolute right and there are circumstances in which the further retention of the
personal data is lawful. In the case of Revenue, personal data can be retained “for
compliance with a legal obligation which requires processing by Union or Member
State law to which the controller is subject…” as set down in Article 17(3)(b). The
legal obligation referred to is the Taxes Acts, in particular Section 851B(3), Taxes
Consolidation Act 1997 which allows taxpayer information to be processed by the
Revenue Commissioners, inter alia, where required for the purposes of the
‘administering, raising, collecting and accounting for tax under the care and
management of the Revenue Commissioners.’”
13. The letter added that “[i]n the circumstances, the information to which you refer is
part of your tax record and will be treated as confidential taxpayer information and
processed in accordance with the Tax Acts. Accordingly we are unable to accede to
your request under Article 17 of the GDPR. If you disagree with this decision, you
have the right to make a complaint to the Data Protection Commission.”
SUMMARY OF THE APPLICANT’S CASE
th
14. The Applicant avers by Affidavit sworn on 25 October 2022 inter alia that without
the benefit of this interlocutory application there would be “no point in the substantial
relief sought (the subject of the 31 May 2021 leave to take judicial review) – that is
the Right to be Forgotten”; that the “Right to be Forgotten would be set to nought” if
the proceedings or the fact that there was a dispute over the sum referred to “was
reported in the media (all forms), recorded on the Court’s website or in the various
law reporting journals”; “if the legal proceedings or the quantum were to be reported
6 in the media (all forms) or otherwise “an impression might be created whereby I am
seen to be a non-compliant tax-payer. This could do irreparable damage to my
reputation as a compliant tax-payer, it would be defamatory and would lower my
reputation in the eyes of reasonable members of society””; that the Applicant’s main
business interest was audited by the Revenue Commissioners in February 2019 and
the conclusion of the Revenue Commissioner’s finding was that there was no
outstanding liability, and all paperwork and procedures were in accordance with all
the Tax Acts and that the “ignominy of being … labelled “tax dodger”, even if
incorrectly so, is something that stays with one for life and it is a topic that the
media/public are fixated with and would have lasting consequences on my right to
earn a living.”
15. In summary, the Applicant claims that the central focus of his case is about his data
and should be seen through the prism of the Charter and the ECHR, whereas he
contends that the Respondent seeks to emphasise the taxation context and question the
applicability of the Charter and the ECHR.
16. The Applicant refers to case-law which he submits illustrates the differences in the
development of data protection law domestically and in the EU, including, Nowak v
Data Protection Commissioner (Case C-434/16) (ECLI:EU:C:2017:994) and GD v
Commissioner of An Gárda Síochána (C-140/20) (ECLI:EU:C:2022:258).
17. The Applicant relies, in particular, on paragraph 29 of the judgment of the CJEU in
Nowak which stated that “[i]t is not disputed that a candidate at a professional
examination is a natural person who can be identified, either directly, through his
7 name, or indirectly, through an identification number, these being placed either on
the examination script itself or on its cover sheet”. The Applicant submits that an
equivalent situation arises in his case and he wishes to have his name replaced by
initials.
18. There is, what the Applicant says, is a minor difference between him and the
Respondent on the applicability of the case law of the CJEU and that of the European
Court of Human Rights (“the Strasbourg Court”). He submits that the jurisprudence of
the Strasbourg Court is persuasive but that every organ of the State is bound by it
arising from the provisions of section 3 of the European Convention on Human Rights
Act 2003.
19. The Applicant cites Article 6(3) of the Consolidated Version of the Treaty on the
European Union which provides that “[f]undamental rights, as guaranteed by the
European Convention for the Protection of Human Rights and Fundamental
Freedoms and as they result from the constitutional traditions common to the Member
states, shall constitute general principles of the Union’s law.” He refers to what he
says is the equivalence in the treatment of the provisions of the ECHR and the
Constitution in the judgment of the Supreme Court in Gilchrist v Sunday Newspapers
Ltd [2017] IESC 18; [2017] 2 I.R. 284 per O’Donnell J. (as he then was) at
paragraphs 23 and 24, pages 202-303.
20. The Applicant also refers to the decision of the CJEU in Google Spain SL v AEPD
(“Google Spain”) (C-131/12, ECLI:EU:C:2014:317) in the context of Article 8 of the
Charter and Article 8 of the ECHR and the predecessor to the GDPR, Directive
8 94/46/EC (24 October 1995). He cites, in particular: paragraph 3 of that judgment,
where reference is made to certain recitals in Directive 94/46/EC, including at
paragraph 10 of the Directive which refers inter alia to “the object of the national
laws on the processing of personal data is to protect fundamental rights and
freedoms, notably the right to privacy, which is recognised both in Article 8 of the
European Convention of Human Rights and Fundamental Freedoms … and in the
general principles of Community law”; paragraph 74 of the judgment, where it is inter
alia stated that the application of Article 7(f) of Directive 94/46/EC necessitates a
balancing of the opposing rights and interests concerned, in the context of which
account must be taken of the significance of the data subject’s rights arising from
Articles 7 and 8 of the Charter; and paragraph 81 of the judgment, which inter alia
references that a fair balance should be sought in particular between the legitimate
interest of internet users potentially interested in having access to information and the
data subject’s fundamental rights under Articles 7 and 8 of the Charter: “[w]hilst it is
true that the data subject’s rights protected by those articles also override, as a
general rule, that interest of internet users, that balance may however depend, in
specific cases, on the nature of the information in question and its sensitivity for the
data subject’s private life and on the interest of the public in having that information,
an interest which may vary, in particular, according to the role played by the data
subject in public life”. The Applicant contends that while a public figure may lose
some of their privacy rights, he is not a public figure.
21. In NT1 v Google LLC [2018] EWHC 799 (QB), Warby J. at page 367 (paragraph 32)
summarised the facts of the Google Spain case as follows: the claimant was a Spanish
national who wanted to remove two links on Google Search to an auction notice
9 posted on a Spanish newspaper’s website, following his bankruptcy. He complained
that the auction notice was many years out of date and was no longer relevant. When
the newspaper and Google declined to remove the links to the notice, he brought a
complaint to the Spanish data protection authority against the newspaper, Google, and
Google Spain SL, its Spanish subsidiary. The CJEU held that Google was bound by
the Data Protection Directive because it had set up a subsidiary in an EU Member
State which was intended to promote and sell advertising space offered by Google
Search and which orientated its activity towards the inhabitants of that state.
22. In the application before me, the Applicant placed emphasis on the finding by the
CJEU in Google Spain (at paragraphs 94 and 96 of the judgment) that there is a “right
to be forgotten” and that a data subject’s fundamental rights under Articles 7 and 8 of
the Charter entitled them to request that information no longer be made available to
the general public by means of a list of results displayed following a search made by
reference to their name, and their rights may override the rights and interests of the
2
ISE and those of the general public and, particularly, that it was unnecessary for the
data subject to show that the inclusion of the information in the search results caused
prejudice.
SUMMARY OF THE RESPONDENT’S CASE
23. On behalf of the Revenue Commissioners, Mr. Clifford SC submits that the Applicant
has not brought himself within the established statutory or common law exceptions to
the rule that justice be administered in public. In addition, the point is made that much
2
The operators of internet search engines.
10 of the detail of the Applicant’s 2007 income tax returns, which he seeks in this
application to be the subject of a ruling that the matter he heard in camera, or in the
alternative, be anonymised, and in the substantive judicial review proceedings to be
effectively erased from the Respondent’s computer systems, was the subject matter of
a determination by the Supreme Court in O’Neill v The Revenue Commissioners
[2016] IESCDET 9 which is both published and retrievable in the ordinary way.
24. Mr. Clifford SC submits, by reference to a number of authorities, that the Superior
Courts have carefully scrutinised claims advanced by litigants to determine whether
they fall within the common law or statutory exception to the fundamental
constitutional principle in Article 34.1 of the Constitution that “[j]ustice shall be
administered in courts established by law by judges appointed in the manner provided
by this Constitution and, save in such special and limited cases as may be prescribed
by law, shall be administered in public” and, by analogy, referenced the seven
principles referred to by the Supreme Court in Gilchrist v Sunday Newspapers
Limited [2017] IESC 18; [2017] 2 I.R. 284 (which are set out later in this judgment).
25. Counsel refers to the decision of Clarke J. (as he then was) in Doe & Doe v The
Revenue Commissioners [2008] IEHC 5; [2008] 3 I.R. 338 and submits that Clarke J.
rejected the contention that there was a constitutionally-based derived right to
taxpayer confidentiality and, instead, found that any entitlement that a non-compliant
3The Respondent also referred to Kennedy v Ireland [1987] I.R. 587; Simpson v Governor of Mountjoy Prison
[2019] IESC 81; FOIE v The Government of Ireland [2020] IESC 49; Medical Council v Anonymous [2019]
IEHC 245; Medical Council v A Medical Practitioner [2020] IEHC 245; SM v LM [2022] IEHC 449; RM v SHC
[2023] IEHC 252; Baby AB, Children’s University Hospital Temple Street v CD [2011] IEHC 1.
4O’Donnell J. (as he then was).
11 taxpayer has to confidentiality in their tax affairs is confined to a statutory
entitlement. It was submitted that the Applicant’s taxpayer information, including for
the year 2007, was protected by the provisions of section 851A(2) of the Taxes
Consolidation Act 1997 which provides that “[a]ll taxpayer information held by the
Revenue Commissioners or a Revenue officer is confidential and may only be
disclosed in accordance with this section or as is otherwise provided for by any other
statutory provision.”
26. In their written submissions, Mr. Clifford SC and Mr. Quinn BL make the point that
from this ‘general prohibition’, a number of exceptions are statutorily prescribed and
that the Oireachtas, from time to time, has amended this provision to add or clarify the
circumstances when such information may be lawfully disclosed. Counsel also state
that it is a common misconception that tax appeals are required to be heard in camera
and refer to section 949Y(1) the Taxes Consolidation Act 1997 which provides that,
subject to section 949Y(2) and section 949Y(3), tax appeals before the Tax Appeals
Commission shall be held in public and that in practice, the Commission facilitates
requests for in camera hearings pursuant to these provisions.
27. It is pointed out that section 949AO(4) of the Taxes Consolidation Act 1997, requires
that the Commission’s published determinations, insofar as possible, do not identify
any person whose affairs were dealt with on a confidential basis. Further, it is
submitted that even where a tax appeal before the Commission is dealt with in
camera, any case stated to the High Court is dealt with in public and that there is no
express provision to displace the constitutional obligation that justice be administered
in public.
1228. The Respondent also makes submissions which address the substantive judicial
review application, stating, for example, that arising from the decision of the CJEU in
Google Spain, the courts must perform a case specific balancing exercise.
29. Insofar as the Applicant relies on section 156 of the 2018 Act, it is submitted that this
contemplates a tortious data protection action and not an application by way of
judicial review. Additionally, it is noted that the Applicant chose not to initiate the
complaint process to the Data Protection Commissioner.
AUTHORITIES REFERED TO
30. As referred to above, the Applicant submits that if this application is unsuccessful, his
substantive proceedings are essentially rendered otiose. On behalf of the Respondent,
it is submitted that this application was, in any event, misconceived ab initio.
31. This court, Clarke J., (as he then was) in In the matter of an intended action, Doe &
Doe v The Revenue Commissioners [2008] IEHC 5; [2008] 3 I.R. 338, addressed
issues in that case which contained both similarities and differences to that concerning
the Applicant in this case.
32. Unlike the position which applies here, for example, the names of the plaintiffs in that
case were fictional from the outset and the court was not informed of the actual
plaintiffs’ names. Clarke J. followed the practice adopted by McCracken J. in Re
Ansbacher (Cayman) Limited [2002] IEHC 27; [2002] 2 I.R. 517, who described this
13 scenario as akin to “something of the chicken and the egg” where a preliminary issue
arose as to whether the court had any power to order a hearing in camera or in some
other way limit the publication of the plaintiffs’ names. In that case, the relevant
preliminary application was maintained in the name of the plaintiffs’ solicitors.
33. In the case before me, no application was made to anonymise either the initial
application for leave to apply for judicial review or the various occasions in which the
substantive proceedings and this motion have appeared in the Non-Jury/Judicial
Review List-to-Fix dates. The Applicant refers to the decision of the High Court of
England and Wales (Warby J.) in NT1 & NT2 v Google [2018] EWHC 799 (QB) (the
title of the proceedings reflected the anonymisation of the claimants), in a decision
which involved business persons whose convictions of criminal convictions were
spent under the Rehabilitation of Offenders Act 1974 and where at page 357
(paragraph 3) under the sub-heading ‘Introduction’, Warby J. inter alia observed that
“[i]n short, anonymity is required to ensure that these claims do not give the
information at issue the very publicity which the claimants wish to limit. Other
individuals and organisations have been given false names in this judgment for the
same reason: to protect the identities of the claimants”. At pages 359-361 of the
reported judgment, Warby J. sets out ten key features of the legal framework and
common law developments in chronological order, including reference to the Human
Rights Act 1998 which gave effect to provisions of the ECHR in England and Wales
(paragraph 6) and to the Charter of Fundamental Rights of the European Union,
particularly Article 7 (respect for private life), Article 8 (protection of personal data),
Article 11 (freedom of expression and information), Article 16 (freedom to conduct a
business) and Article 47 (right to an effective remedy).
1434. The Applicant claims that the comments of Warby J. in NT1 & NT2 apply mutatis
mutandis to his substantive application for judicial review where he seeks the ‘right to
be forgotten’ and the deletion of his tax data in 2007 but contends that the seeking of
this remedy would be worthless (and rendered moot) if his name is on the proceedings
and that he has a right to an effective remedy and to a fair trial pursuant to Article 47
of the Charter (which provides that “[e]veryone whose rights and freedoms
guaranteed by the law of the Union are violated has the right to an effective remedy
before a tribunal in compliance with the conditions laid down in this Article.
Everyone is entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal previously established by law. Everyone shall
have the possibility of being advised, defended and represented. Legal aid shall be
made available to those who lack sufficient resources in so far as such aid is
necessary to ensure effective access to justice”) and the right to an effective judicial
remedy against a controller or processor, as per Article 79 of the GDPR (which
provides “(1) [w]ithout prejudice to any available administrative or non-judicial
remedy, including the right to lodge a complaint with a supervisory authority
pursuant to Article 77, each data subject shall have the right to an effective judicial
remedy where he or she considers that his or her rights under this Regulation have
been infringed as a result of the processing of his or her personal data in non-
compliance with this Regulation; (2) Proceedings against a controller or a processor
shall be brought before the courts of the Member State where the controller or
processor has an establishment. Alternatively, such proceedings may be brought
before the courts of the Member State where the data subject has his or her habitual
15 residence, unless the controller or processor is a public authority of a Member State
acting in the exercise of its public powers.”
35. The Applicant states that the right to his reputation as a compliant taxpayer is
important and the ‘right to be forgotten’ is part of the protection of this reputation and
he references Warby J.’s observation at page 379 (paragraph 63) of the judgment in
NT1 & NT2 v Google that “[t]he authorities show that injury to reputation can engage
the protection of Article 8 of the Convention”.
36. The Applicant contends that whereas he has rights under Article 8 ECHR, the
Revenue Commissioners have no corresponding Article 10 ECHR (freedom of
expression) rights and he refers to page 403 (paragraph 132) of the judgment of
Warby J. in NT1 v Google, as follows: “[i]n my judgment, the balancing process in
any individual delisting case is ordinarily, as a matter of principle, to be entered into
with the scales in equal balance as between delisting on the one hand and continued
processing on the other. I say that on the basis that such cases will ordinarily engage
the rights protected by Articles 8 and 10 of the Convention and, for so long as
European law is part of our domestic law, their counterparts under the Charter, as
well as the right to freedom of information contained in Article 11 of the Charter.”
37. The Applicant refers to the analysis of the Google Spain case by the Strasbourg Court
in Hurbain v Belgium (Application No.57292/16, 4 July 2023) where that court, at
paragraph 73, inter alia described the decision of the CJEU in Google Spain as
concluding “that if, under Articles 7 and 8 of the European Union’s Charter of
Fundamental Rights guaranteeing, respectively, the right to respect for private life
16 and the right to the protection of personal data, the data subjects had a right to
ensure that the information in question relating to them personally should no longer
be linked to their name by a list of results – although this did not presuppose that the
inclusion of the information in question caused prejudice to the data subject – and if
they were thus entitled to request that the information in question no longer be made
available to the general public on account of its inclusion in such a list of results,
those rights overrode, as a rule, not only the economic interest of the search engine
operator but also the interest of the general public in having access to that
information through a search relating to the data subject’s name. However,
according to the CJEU, the balance to be struck between the interests of the person
making the request and the public’s interest in having access to the information might
depend, in specific cases, on the nature of the information in question and its
sensitivity for the data subject’s private life and on the interest of the public in having
that information, an interest which might vary, in particular, according to the role
played by the data subject in public life.”
38. Thus the Applicant, in the application before me, is seeking a similar remedy to that
referred to by the Strasbourg Court at paragraph 249 of its judgment in Hurbain v
Belgium where “the Liège Court of Appeal found that the most effective means of
protecting G.’s privacy without interfering to a disproportionate extent with the
applicant’s freedom of expression was to anonymise the article on the website of Le
Soir by replacing G.’s first name and surname with the letter X. In that connection,
the Court has previously held that anonymisation is less detrimental to freedom of
expression than the removal of an entire article (see M.L. and W.W. v. Germany, cited
above, § 105). It notes that anonymisation constitutes a particular means of altering
17 archived material in that it concerns only the first name and surname of the person
concerned and does not otherwise affect the content of the information conveyed.”
39. The applicant also refers to G v DPP [2023] IEHC 134, where it was sought to have
criminal proceedings which were listed before the District Court anonymised and the
District Court refused the application. In granting leave, this court (Simons J.)
observed at paragraph 28 of the judgment that he had previously directed that
reporting restrictions apply to the judicial review proceedings pro tempore as it
“would render the proceedings nugatory” if such an order were not imposed because
the identity of the parties, which was the very thing that the applicant sought to
protect, would have been disclosed.
40. As mentioned earlier, reference is also made to the decision of Clarke J. (as he then
was) in Doe & Doe v The Revenue Commissioners.
41. In summary, the plaintiffs had reached a settlement with the Revenue Commissioners
in relation to a scheme for disclosure of undeclared tax liabilities and had sought, via
a preliminary application, the court’s approval to issue proceedings under assumed
names. Clarke J. described what the issues were in the case at paragraphs 4.11 to 4.13
of his judgment, as follows:
“4.11 Under this heading it was argued on behalf of the plaintiffs that
an inability to maintain these proceedings with anonymity would
amount, in substance, to a barrier to proper access to the courts. The
plaintiffs’ argument was to the effect that a requirement that they be
named as plaintiffs would, in practical terms, deprive them of the
18opportunity to bring proceedings designed to protect their anonymity.
There is, of course, a sense in which that assertion is factually
correct. A finding by the court that the construction which the
plaintiffs seek to place on the relevant provisions of the Taxes Acts
was correct, would mean that the plaintiffs could not properly be
included in the periodic list of tax defaulters published by the
Revenue. However, the fact that the plaintiffs were tax defaulters who
had entered into a settlement of the type which I have described
earlier in this judgment would, of course, become public knowledge
through the route of the court proceedings which, if not permitted to
be brought anonymously would, of course, identify the plaintiffs as the
tax defaulters concerned.
4.12 Thus, it was said, that where the purpose of the proceedings is to
prevent the publication of a particular piece of information, then
those proceedings are rendered largely useless if the party concerned
has to be named in order to bring the proceedings in the first place.
4.13 However, similar considerations apply to a greater or lesser
extent in many cases. It is, as McCracken J. pointed out in Re
Ansbacher (Cayman) Ltd, the case that persons who wish to restrain
an alleged defamation are required to be named and are, in practice,
required to at least generally identify the defamatory material which
it is believed is likely to be published. Plaintiffs who wish to restrain
the use or publication of undoubtedly confidential material arising in,
19 for example, a commercial context, are also required to be named
though it has to be said that it may be possible to frame such
proceedings and the evidence presented in a way which does not
disclose in detail the confidential information concerned. Nonetheless
such parties will be required to bring into the public domain at least
such a sufficient description of the material concerned as may be
necessary for the determination of the proceedings and the making of
any appropriate order.”
42. The Applicant refers to paragraph 4.2 of the judgment of Clarke J. in Doe & Doe v
The Revenue Commissioners where it was inter alia observed that “[w]hatever may be
the position of compliant taxpayers, it is difficult to see how any constitutional
entitlement could be asserted which would prevent the public generally from being
made aware of the manner in which others have failed to meet their tax obligations.”
The Applicant states that as he is a compliant taxpayer, the judgment in Doe has no
relevance to him.
43. Throughout his submissions, the Applicant emphasises (in also seeking to distinguish
the decision in Doe) that his application for judicial review is not about tax but is,
rather, about his data which is stored in the Revenue system. He contends, for
example, that the Respondent used his data to make a refund, which he states was
owed to him, to be set at nought.
44. In Gilchrist v Sunday Newspapers Ltd [2017] IESC 18; [2017] 2 I.R. 284, the
Supreme Court considered the court’s common law power to direct an in camera
20hearing, having regard to the provisions of Article 34.1 of the Constitution which
provides that justice shall be administered in courts established by law by judges
appointed in the manner provided by the Constitution, and, save in such special and
limited cases as may be prescribed by law, shall be administered in public and further
considered the provisions of Article 6 of the ECHR. After analysing a number of
statutory provisions and case law, including In re R Ltd [1989] I.R. 126; Irish Times
Ltd v Ireland [1998] 1 I.R. 359; O’Donnell J. in Gilchrist v Sunday Newspapers Ltd
[2017] IESC 18; [2017] 2 I.R. 284 at paragraph 45, summarised the applicable
principles, as follows:
“(i) The Article 34.1 requirement of administration of justice
in public is a fundamental constitutional value of great
importance;
(ii) Article 34.1 itself recognises, however, that there may be
exceptions to that fundamental rule;
(iii) Any such exception to the general rule must be strictly
construed, both as to the subject matter, and the manner in
which the procedures depart from the standard of a full
hearing in public;
(iv) Any such exception may be provided for by statute but
also under the common law power of the court to regulate its
own proceedings;
(v) Where an exception from the principle of hearing in public
is sought to be justified by reference only to the common law
power and in the absence of legislation, then the interests
involved must be very clear, and the circumstances pressing.
21Here that demanding test is capable of being met by the
combination of the threat to the programme and the risk to
lives of people in it or administering it. This is not a matter of
speculation, but seems an unavoidable consequence of the
existence of a witness protection programme;
(vi) While if it can be shown the justice cannot be done unless
a hearing is conducted other than in public, that will plainly
justify the exception from the rule established by Article 34.1,
but that is not the only criterion. Where constitutional
interests and values of considerable weight may be damaged
or destroyed by a hearing in public, it may be appropriate for
the legislature to provide for the possibility of the hearing
other than in public, (as it has done) and for the court to
exercise that power in a particular case if satisfied that it is a
case which presents those features which justify a hearing
other than in public;
(vii) The requirement of strict construction of any exception to
the principle of trial in public means that a court must be
satisfied that each departure from that general rule is no more
than is required to protect the countervailing interest. It also
means that court must be resolutely sceptical of any claim to
depart from any aspect of a full hearing in public. Litigation is
a robust business. The presence of the public is not just
unavoidable, but is necessary and welcome. In particular this
will mean that even after concluding that case warrants a
22 departure from that constitutional standard, the court must
consider if any lesser steps are possible such as providing for
witnesses not to be identified by name, or otherwise identified
or for the provision of a redacted transcript for any portion of
the hearing conducted in camera.”
ASSESSMENT & DECISION
45. The decision of the Supreme Court in Gilchrist eschewed, as incorrect, an approach
which contemplated only two binary options, i.e., a hearing in camera or a hearing in
public. Rather, a sceptical and incremental approach which examined lesser steps
which might meet the legitimate interests involved was preferred including, by way of
example, considerations of anonymising witnesses, orders that witnesses may not be
photographed or identified in any way, whether any part of the hearing may be
conducted in public, whether it was possible in respect of any hearing that was held in
private that a redacted transcript of proceedings can be released to the media.
46. For the following reasons, I am of the view, notwithstanding the comprehensive
submissions of the Applicant, that his application is misconceived and incorrect,
(including having regard to section 156 of the 2018 Act). Further, I do not consider
that the arguments of the Applicant are exceptional in the Gilchrist sense or that there
are any intermediate steps, along the spectrum book-ended by an in camera hearing,
at one end, and a public hearing, at the other, such as the use of initials, a process of
redaction or any process of anonymisation, is warranted in this case. For the following
23 reasons, therefore, I am of the view that this application for judicial review should be
conducted fully in public.
47. In Doe & Doe v The Revenue Commissioners, Clarke J. was not satisfied that the fact
that publicity attaching to proceedings might be counterproductive to the benefit of
bringing proceedings from an intended plaintiffs’ perspective constituted a basis for
anonymisation and observed as follows at paragraphs 4.18 of his judgment:
“There is, in my view, a distinction of some importance to be drawn
between, on the one hand, a case where the benefit of bringing
proceedings (even if they be successful) would be impaired (even to a
significant extent) by the necessity to have the proceedings conducted
in full publicity, and on the other hand, a situation where the very
outcome of the proceedings themselves could be affected by such
publicity. Each of the judgments of the Supreme Court in Irish Times
emphasised the heavy constitutional weight to be placed on ensuring
that the administration of justice is conducted in a fair manner.
Publicity which might affect the fair and just result of proceedings
has the potential, therefore, to be a significant interference with the
administration of justice. In those circumstances significant weight
has to be attached to a consideration of measures which may be
designed to promote the likelihood of a fair and just result to
litigation. I was not satisfied that an equivalent weight ought be
attached to circumstances where there was no risk that the ultimate
determination of the court, in the exercise of the administration of
justice, would be other than fair, but where it might be said that
24 publicity attaching to proceedings might, even to a significant extent,
devalue the benefit of bringing the proceedings on anything other
than an anonymous basis.”
48. Clarke J. set out his conclusions on the plaintiffs’ application made at paragraph 5.1
of the judgment as follows:
“For the reasons which I have sought to analyse I was not, therefore,
satisfied that the court had any jurisdiction to permit proceedings
such as those intended by the plaintiffs to be conducted on an
anonymous basis. I was not satisfied that any entitlement to
confidentiality concerning their tax affairs which the plaintiffs might
assert could be of sufficient weight to countervail, even to a limited
extent, the constitutional imperative to the effect that justice be
administered in public. Nor was I satisfied that a requirement that the
proceedings be brought in the names of the plaintiffs amounted to an
infringement of the plaintiffs undoubted right of access to the courts.
The fact that the plaintiffs might be discouraged from bringing
proceedings if not permitted to bring them anonymously was not, of
itself, in my view, a sufficient reason to give rise to a jurisdiction to
permit the proceedings to be brought anonymously. Nor, in my view,
was the fact that some of the purpose of the proceedings might be
lost, in practice, a sufficient factor to give rise to a constitutional
jurisdiction to permit these proceedings to be brought anonymously.”
2549. As it happens, arising from the decision of the court in Doe & Doe v The Revenue
Commissioners, which required the plaintiffs to bring the proceedings in their own
names, they decided not to proceed with the substantive proceedings.
50. In the case before me, the Applicant had already brought the application for judicial
review in his own name and had not sought to have the leave application anonymised
for that purpose or that reporting restrictions apply to the leave application. His
application in that sense has a retrospective quality to it. Further, whatever about the
question of the mootness of the substantive proceedings, which the Applicant submits
will result from the refusal of this application, there is no suggestion that those
proceedings would be conducted unfairly.
51. In relation to the Applicant’s arguments concerning the position of the ECHR in our
constitutional architecture, it is clear that, whether or not legal arguments by reference
to the ECHR and the Constitution come first or second in time or in sequence, the
important issue is that the provisions of the Constitution are properly considered and
addressed (see the judgment of the Supreme Court in joint cases Gorry & Anor v The
Minister for Justice & Equality and ABM & BA v The Minister for Justice [2020]
IESC 55 at paragraph 209 per McKechnie J.) as the Oireachtas could not, in the
absence of a constitutional amendment, have elected to treat the ECHR as if it were
some form of shadow or substitute Constitution (see the judgment of the Supreme
Court in Clare County Council v McDonagh & Anor and Irish Human Rights and
Equality Commission (Amicus Curiae) [2022] IESC 2 per Hogan J. at paragraph 52).
2652. As these authorities make clear, the Long Title to the European Convention on
Human Rights Act 2003 states that the giving effect to the ECHR in our domestic law
is subject to the provisions of the Constitution and, therefore, the ECHR does not have
direct effect. Without a constitutional amendment, the Oireachtas could not have
elected to treat the ECHR as if it were some form of proxy or substitute constitutional
measure.
53. As just mentioned, (and paraphrasing Hogan J. in Clare County Council v
McDonagh) the precise sequence in which the ECHR or the Constitution is
considered, in any relevant litigation, is not predetermined or prescribed so long as the
Constitution is also properly considered and addressed at the same time as the ECHR
because to do otherwise would be yielding a form of quasi-constitutional primacy to
the ECHR, which it has never been afforded.
54. Further, as explained by the Supreme Court (Hogan J.) in Clare County Council v
McDonagh [2022] IESC 2, at paragraphs 51 and 52 of the judgment, the Charter has,
as an EU measure, in principle, direct effect in Irish domestic law, subject only to the
conditions of its application specified in Article 51 (the Member State must be
implementing EU law) and Article 52 (inter alia the rights prescribed in the Charter
are interpreted in harmony with the Member State’s traditions), because Article 6(1)
Treaty on European Union (TEU) prescribes that it “shall have the same legal value
as the Treaties” and because the State is empowered to ratify the TEU in accordance
with Article 29.4.6 of the Constitution. In contrast, by virtue of the European
Convention on Human Rights Act 2003, the ECHR has – pursuant to Article 29.6 of
27 the Constitution – been given effect in Irish law without direct effect and at sub-
constitutional level.
55. In relation to the Applicant’s general arguments concerning anonymity, it is noted that
the Oireachtas has provided for anonymity in certain circumstances, for example,
section 27 of the Civil (Miscellaneous Provisions) Act 2008 provides for anonymity
in civil proceedings in relation to a medical condition of a relevant person and section
26 of the International Protection Act 2015 provides for the protection of an
applicant’s identity.
56. In terms of tax matters, section 949Y(1) of the Taxes Consolidation Act 1997 (“the
1997 Act”) provides that subject to sections 949Y(2) and 949Y(3) of the 1997 Act, all
hearings are to be held in public. Section 949Y(2) of the 1997 Act provides that the
Appeal Commissioners may direct to hold a hearing, or part of a hearing, in private in
certain specified situations including where they consider the giving of such a
direction is necessary in the following circumstances: (a) in the interests of public
order or national security; (b) to avoid serious harm to the public interest; (c) to
maintain the confidentiality of sensitive information; (d) to protect an individual’s
right to respect for his private and family life; or (e) in the interest of justice. Section
949Y(3) of the 1997 Act provides that the Appeal Commissioners must hold a hearing
or part of a hearing in private where an appellant request they do so. Requests can be
made by way of application for a direction or can be included in the statement of case
and section 949Y(4) of the 1997 Act provides that an appellant can submit a request
for a private hearing up to 14 days after being notified of a hearing. (The Applicant
28 submits that, in his experience, many of these appeals are in fact redacted having
regard to the provisions of section 949Y(2)(d) of the 2018 Act).
57. As set out earlier, in the letter dated 22ndFebruary 2021 from the Respondent, the
Applicant was advised that the Respondent was unable to accede to his request under
Article 17 of the GDPR and that if he disagreed with that decision, he had the right to
make a complaint to the Data Protection Commissioner. He chose not to do so and,
rather, proceeded by way of judicial review under Order 84 RSC. The Applicant
submits that his preference was to pursue the route of judicial review rather than make
a complaint to the Data Protection Commissioner (though he submits that the DPC
was contacted by him during Covid-19 but that he decided to proceed by way an
application for judicial review). The Applicant refers to section 117 of the 2018 Act
(‘Judicial Remedy for infringement of relevant enactment’) and, in particular, section
117(1) of the 2018 Act which refers to “[s]ubject to subsection (9), and without
prejudice to any other remedy available to him or her, including his or her right to
lodge a complaint, a data subject may, where he or she considers that his or her
rights under a relevant enactment have been infringed as a result of the processing of
his or her personal data in a manner that fails to comply with a relevant enactment,
bring an action (in this section referred to as a “data protection action”) against the
controller or processor concerned.” (The Applicant relies on the portion of the
quotation underlined).
58. Part 6 of the 2018 Act comprises Chapters 1 to 8 which includes sections 105 to 156
of the 2018 Act. Section 117 of the 2018 Act provides for “Judicial remedy for
29 infringement of relevant enactment” and (subject to section 117(5) and (6), the Circuit
Court has concurrent jurisdiction with the High Court).
59. Section 117(4) of the 2018 Act provides that a court hearing a data protection action
shall have the power to grant to the plaintiff one or more of the following reliefs: (a)
relief by way of injunction or declaration; or (b) compensation for damage suffered by
the plaintiff as a result of the infringement of a relevant enactment. Section 156 of the
2018 Act provides that the whole or any part of any proceedings under this Part may,
at the discretion of the court, be heard otherwise than in public. The reference to “this
Part” is a reference to “Part 6” of the 2018 Act and the legal proceedings which are
prescribed therein, including, for example, those provided for in section 117(4) of the
2018 Act. Section 156 of the 2018 Act does not include or refer to the type of
challenge brought by the Applicant in this case, i.e., by way of judicial review.
60. Notwithstanding the Applicant’s comprehensive written and oral submissions, his
attempt, in this interlocutory application, to invoke section 156 of the 2018 Act, is
misconceived.
61. In addition, it is noted that the Applicant has sought an order directing either an in
camera hearing or anonymisation, mid-stream as it were, after leave to apply for
judicial review had been granted, and the matter, has been before the court in the
Non-Jury/Judicial Review List of the High Court without anonymisation or redaction
on multiple occasions. To that extent, it is the Applicant who has brought his own tax
affairs back into focus.
3062. Further, the Supreme Court gave a detailed determination refusing the Applicant’s
application for leave to appeal in relation to the decision of the Court of Appeal
st
delivered on 31 July 2015 which in turn referred to the two judicial review appeals
brought by the Applicant to the Court of Appeal.
63. The Supreme Court (Denham CJ., Laffoy J. and Charleton J.) in O’Neill v Revenue
Commissioners & The Attorney General [2016] IESCDET 9, for example, refused the
Applicant leave to appeal from the judgment of the Court of Appeal (Ryan P., with
st
whom Kelly J. and Hogan J. agreed) delivered on 31 July 2015, which decided the
Applicant’s appeals from both cases of judicial review, which he had brought to the
Court of Appeal. The Applicant had sought an order quashing the financial
assessment made against him and an order of mandamus requiring a letter from the
respondent stating: “[w]e have examined your expression of doubt and in accordance
with Section 995(4) (a) hold that it is genuine; we will be treating you as though you
have made a full and true return.” The Applicant had stated that he was seeking a
declaration that section 955(4) of the Taxes Consolidation Act 1997 along with the
Taxes (Electronic Transmission of Income Tax and Capital Gains Tax Returns under
Self-Assessment) (Specified Provision and Appointed Day) Order 2001 (S.I. 441 of
2001 (ROS: Revenue Online Service)) was unconstitutional. The Applicant had also
sought a declaration that the method used by the respondent to define “Trade”, “the
Badges of Trade”, which was a 1954 UK Royal Commission, was unconstitutional.
The fact of these matters remains in the public domain.
64. In the circumstances, I shall refuse the Applicant’s interlocutory application for an
order that his substantive judicial review proceedings be heard otherwise than in
31 public or in camera and I shall also refuse the application that those proceedings be
anonymised.
PROPOSED ORDER
65. Accordingly, I will make an order refusing the Applicant’s application for an order
that his substantive judicial review proceedings be heard otherwise than in public or
in camera and I shall also refuse the application that those proceedings be
anonymised.
th th
66. It was agreed at the hearing of this application on 11 and 12 April 2024 that any
intended application for a preliminary reference to the CJEU would be left over until
judgment was delivered on the Applicant’s in camera/anonymisation application. I
th
will, therefore, put the matter in before me on Wednesday 5 June 2024 at 10:15 to
deal with this and any other ancillary and consequential matters which arise.
32
