Data Protection (Amendment) Act 2003

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“Processing of personal data.

2A.—(1) Personal data shall not be processed by a data controller unless section 2 of this Act (as amended by the Act of 2003) is complied with by the data controller and at least one of the following conditions is met:

(a)  the data subject has given his or her consent to the processing or, if the data subject, by reason of his or her physical or mental incapacity or age, is or is likely to be unable to appreciate the nature and effect of such consent, it is given by a parent or guardian or a grandparent, uncle, aunt, brother or sister of the data subject and the giving of such consent is not prohibited by law,

(b)  the processing is necessary—

(i)  for the performance of a contract to which the data subject is a party,

(ii)  in order to take steps at the request of the data subject prior to entering into a contract,

(iii) for compliance with a legal obligation to which the data controller is subject other than an obligation imposed by contract, or

(iv) to prevent—

(I)  injury or other damage to the health of the data subject, or

(II) serious loss of or damage to property of the data subject,

or otherwise to protect his or her vital interests where the seeking of the consent of the data subject or another person referred to in paragraph (a) of this subsection is likely to result in those interests being damaged,

(c)  the processing is necessary—

(i)  for the administration of justice,

(ii)  for the performance of a function conferred on a person by or under an enactment,

(iii) for the performance of a function of the Government or a Minister of the Government, or

(iv) for the performance of any other function of a public nature performed in the public interest by a person,

(d)  the processing is necessary for the purposes of the legitimate interests pursued by the data controller or by a third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the fundamental rights and freedoms or legitimate interests of the data subject.

(2) The Minister may, after consultation with the Commissioner, by regulations specify particular circumstances in which subsection (1)(d) of this section is, or is not, to be taken as satisfied.

Processing of sensitive personal data.

2B.—(1) Sensitive personal data shall not be processed by a data controller unless:

(a)  sections 2 and 2A (as amended and inserted, respectively, by the Act of 2003) are complied with, and

(b)  in addition, at least one of the following conditions is met:

(i)  the consent referred to in paragraph (a) of subsection (1) of section 2A (as inserted by the Act of 2003) of this Act is explicitly given,

(ii)  the processing is necessary for the purpose of exercising or performing any right or obligation which is conferred or imposed by law on the data controller in connection with employment,

(iii) the processing is necessary to prevent injury or other damage to the health of the data subject or another person or serious loss in respect of, or damage to, property or otherwise to protect the vital interests of the data subject or of another person in a case where—

(I)  consent to the processing cannot be given by or on behalf of the data subject in accordance with section 2A(1)(a) (inserted by the Act of 2003) of this Act, or

(II) the data controller cannot reasonably be expected to obtain such consent,

or the processing is necessary to prevent injury to, or damage to the health of, another person, or serious loss in respect of, or damage to, the property of another person, in a case where such consent has been unreasonably withheld,

(iv) the processing—

(I)  is carried out in the course of its legitimate activities by any body corporate, or any unincorporated body of persons, that—

(A) is not established, and whose activities are not carried on, for profit, and

(B) exists for political, philosophical, religious or trade union purposes,

(II) is carried out with appropriate safeguards for the fundamental rights and freedoms of data subjects,

(III) relates only to individuals who either are members of the body or have regular contact with it in connection with its purposes, and

(IV) does not involve disclosure of the data to a third party without the consent of the data subject,

(v) the information contained in the data has been made public as a result of steps deliberately taken by the data subject,

(vi) the processing is necessary—

(I)  for the administration of justice,

(II) for the performance of a function conferred on a person by or under an enactment, or

(III) for the performance of a function of the Government or a Minister of the Government,

(vii) the processing—

(I)  is required for the purpose of obtaining legal advice or for the purposes of, or in connection with, legal proceedings or prospective legal proceedings, or

(II) is otherwise necessary for the purposes of establishing, exercising or defending legal rights,

(viii) the processing is necessary for medical purposes and is undertaken by—

(I)  a health professional, or

(II) a person who in the circumstances owes a duty of confidentiality to the data subject that is equivalent to that which would exist if that person were a health professional,

(ix) the processing is necessary in order to obtain information for use, subject to and in accordance with the Statistics Act 1993 , only for statistical, compilation and analysis purposes,

(x) the processing is carried out by political parties, or candidates for election to, or holders of, elective political office, in the course of electoral activities for the purpose of compiling data on people's political opinions and complies with such requirements (if any) as may be prescribed for the purpose of safeguarding the fundamental rights and freedoms of data subjects,

(xi) the processing is authorised by regulations that are made by the Minister and are made for reasons of substantial public interest,

(xii) the processing is necessary-for the purpose of the assessment, collection or payment of any tax, duty, levy or other moneys owed or payable to the State and the data has been provided by the data subject solely for that purpose,

(xiii) the processing is necessary for the purposes of determining entitlement to or control of, or any other purpose connected with the administration of any benefit, pension, assistance, allowance, supplement or payment under the Social Welfare (Consolidation) Act 1993 , or any nonstatutory scheme administered by the Minister for Social, Community and Family Affairs.

(2) The Minister may by regulations made after consultation with the Commissioner—

(a)  exclude the application of subsection (1)(b)(ii) of this section in such cases as may be specified, or

(b)  provide that, in such cases as may be specified, the condition in the said subsection (1)(b)(ii) is not to be regarded as satisfied unless such further conditions as may be specified are also satisfied.

(3) The Minister may by regulations make such provision as he considers appropriate for the protection of data subjects in relation to the processing of personal data as to—

(a)  the commission or alleged commission of any offence by data subjects,

(b)  any proceedings for an offence committed or alleged to have been committed by data subjects, the disposal of such proceedings or the sentence of any court in such proceedings,

(c)  any act or omission or alleged act or omission of data subjects giving rise to administrative sanctions,

(d)  any civil proceedings in a court or other tribunal to which data subjects are parties or any judgment, order or decision of such a tribunal in any such proceedings,

and processing of personal data shall be in compliance with any regulations under this subsection.

(4) In this section—

‘health professional’ includes a registered medical practitioner, within the meaning of the Medical Practitioners Act 1978 , a registered dentist, within the meaning of the Dentists Act 1985 or a member of any other class of health worker or social worker standing specified by regulations made by the Minister after consultation with the Minister for Health and Children and any other Minister of the Government who, having regard to his or her functions, ought, in the opinion of the Minister, to be consulted;

‘medical purposes’ includes the purposes of preventive medicine, medical diagnosis, medical research, the provision of care and treatment and the management of healthcare services.

Security measures for personal data.

2C.—(1) In determining appropriate security measures for the purposes of section 2(1)(d) of this Act, in particular (but without prejudice to the generality of that provision), where the processing involves the transmission of data over a network, a data controller—

(a)  may have regard to the state of technological development and the cost of implementing the measures, and

(b)  shall ensure that the measures provide a level of security appropriate to—

(i)  the harm that might result from unauthorised or unlawful processing, accidental or unlawful destruction or accidental loss of, or damage to, the data concerned, and

(ii)  the nature of the data concerned.

(2) A data controller or data processor shall take all reasonable steps to ensure that—

(a)  persons employed by him or her, and

(b)  other persons at the place of work concerned,

are aware of and comply with the relevant security measures aforesaid.

(3) Where processing of personal data is carried out by a data processor on behalf of a data controller, the data controller shall—

(a)  ensure that the processing is carried out in pursuance of a contract in writing or in another equivalent form between the data controller and the data processor and that the contract provides that the data processor carries out the processing only on and subject to the instructions of the data controller and that the data processor complies with obligations equivalent to those imposed on the data controller by section 2(1)(d) of this Act,

(b)  ensure that the data processor provides sufficient guarantees in respect of the technical security measures, and organisational measures, governing the processing, and

(c)  take reasonable steps to ensure compliance with those measures.

Fair processing of personal data.

2D.—(1) Personal data shall not be treated, for the purposes of section 2(1)(a) of this Act, as processed fairly unless—

(a)  in the case of data obtained from the data subject, the data controller ensures, so far as practicable, that the data subject has, is provided with, or has made readily available to him or her, at least the information specified in subsection (2) of this section,

(b)  in any other case, the data controller ensures, so far as practicable, that the data subject has, is provided with, or has made readily available to him or her, at least the information specified in subsection (3) of this section—

(i)  not later than the time when the data controller first processes the data, or

(ii)  if disclosure of the data to a third party is envisaged, not later than the time of such disclosure.

(2) The information referred to in subsection (1)(a) of this section is:

(a)  the identity of the data controller,

(b)  if he or she has nominated a representative for the purposes of this Act, the identity of the representative,

(c)  the purpose or purposes for which the data are intended to be processed, and

(d)  any other information which is necessary, having regard to the specific circumstances in which the data are or are to be processed, to enable processing in respect of the data to be fair to the data subject such as information as to the recipients or categories of recipients of the data, as to whether replies to questions asked for the purpose of the collection of the data are obligatory, as to the possible consequences of failure to give such replies and as to the existence of the right of access to and the right to rectify the data concerning him or her.

(3) The information referred to in subsection (1)(b) of this section is:

(a)  the information specified in subsection (2) of this section,

(b)  the categories of data concerned, and

(c)  the name of the original data controller.

(4) The said subsection (1)(b) does not apply—

(a)  where, in particular for processing for statistical purposes or for the purposes of historical or scientific research, the provision of the information specified therein proves impossible or would involve a disproportionate effort, or

(b)  in any case where the processing of the information contained or to be contained in the data by the data controller is necessary for compliance with a legal obligation to which the data controller is subject other than an obligation imposed by contract,

if such conditions as may be specified in regulations made by the Minister after consultation with the Commissioner are complied with.”.