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Cite as: [2013] IESC 34
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Judgment Title: EMI Records (Ireland) Limited & ors v The Data Protection Commissioner Neutral Citation: [2013] IESC 34 Supreme Court Record Number: 369/2012 High Court Record Number: 2012 167 JR Date of Delivery: 03/07/2013 Court: Supreme Court Composition of Court: Fennelly J., O'Donnell J., Clarke J. Judgment by: Clarke J. Status of Judgment: Approved
Outcome: Dismiss | ||||||||||||||||
THE SUPREME COURT [Appeal No. 369/12] Fennelly J.
EMI Records (Ireland) Limited, Sony Music Entertainment Ireland Limited, Universal Music (Ireland) Limited and Warner Music Ireland Limited Applicants / Respondents and The Data Protection Commissioner Respondent / Appellant and Eircom Limited Notice Party Judgment of Mr. Justice Clarke delivered the 3rd July, 2013.
1. Introduction 1.2 The applicants/respondents (“the record companies”) are all major players in the music industry and own copyright in a significant number of valuable musical works. The notice party (“Eircom”) is involved in these proceedings as a result of its provision of internet services. There has, in recent years, of course, being much controversy about alleged unlawful copying, not least on the internet, of music (and indeed other works) in which copyright is held. 1.3 In circumstances to which I will shortly turn the record companies brought proceedings against Eircom arising out of what was said to have been unauthorised and unlawful sharing of copyright material facilitated by internet services provided by Eircom. Those proceedings were settled but it was asserted by the respondent/appellant (“the Commissioner”) that implementation of certain aspects of that settlement might amount to a breach of data protection law. The parties to the settlement applied to court for a ruling on the consistency of the settlement with data protection law and, in circumstances which it will be necessary to address, the Commissioner ultimately declined to participate. The court ruled that implementation of the settlement would not be in breach of any relevant law. 1.4 However the Commissioner appears to have remained of the view that the implementation of certain aspects of the settlement would be unlawful and, following a complaint, issued an Enforcement Notice to Eircom under the provisions of the Data Protection Act, 1988, as amended. Eircom appealed against the Enforcement Notice, as permitted by the same statutory regime, and the record companies sought to be joined in that appeal. However before any questions came to be determined in that appeal the record companies commenced these judicial review proceedings seeking to have the Enforcement Notice quashed. The High Court (Charleton J.) agreed with the record companies' case and quashed the Enforcement Notice. The Commissioner has appealed to this Court against that finding. The issues which arise on the appeal generally are, at least on one view, wide ranging involving important questions of both national and European Union law. However as a result of a case management process two issues have come to trial as a first module of the appeal. The first is an issue raised by the Commissioner as to whether judicial review is appropriate in the light of what is said to be the more applicable remedy of the statutory appeal to which reference has been made. The second issue concerns the question of whether the trial judge was correct to quash the Enforcement Notice on the basis of absence of reasons. 1.5 This judgment is directed solely to those two questions. In order to better understand the issues which arise and how it comes to pass that those two issues currently fall for decision it is appropriate to start by referring to the procedural history. 2. Procedural History 2.2 As already noted, on becoming informed of the Protocol, the Commissioner raised a number of data protection concerns with Eircom and discussions between those two parties continued between the 11th May, 2009, and the 17th December, 2009. On the 15th January, 2010, the Commissioner wrote a formal letter to Eircom setting out his concerns. The proceedings between the record companies and Eircom were re-entered in the High Court, as a result of the intervention of the Commissioner, for the purposes of having those concerns adjudicated upon. In advance of a hearing, however, the Commissioner sought assurances from the record companies and Eircom to the effect that they would either pay his costs and/or would not seek costs against him. The record companies and Eircom declined to give such assurances. Arising, it would appear, out of those concerns about costs the Commissioner declined to appear at that hearing. 2.3 Nevertheless, the hearing regarding the data protection issues went ahead before Charleton J. in the High Court. After hearing submissions from the record companies and Eircom, (who both urged that there was no data protection barrier to the implementation of the Protocol) the court ruled on the 16th April, 2010, amongst other things, that there were adequate procedural safeguards in the Protocol such that it was in accordance with Directive 2009/140/EC, ("the Directive") which governs the law in this area and, therefore, that there was no legal impediment to its implementation. The operation of the Protocol commenced in August 2010. 2.4 On the 9th December, 2010, a customer of Eircom received an infringement notice under the terms of the Protocol stating that she had uploaded material to the internet in breach of her contract with Eircom. This notice had been sent in error to a person uninvolved in the alleged illegal uploading due an oversight arising out of the changing of the clocks in October 2010. This notification was then referred to the Commissioner by a son of the recipient who said that he, rather than his mother, was the user of the internet service in question. This prompted further correspondence between the Commissioner and Eircom, following which Eircom acknowledged that a mistake had been made and that the notice should not have been sent to the relevant recipient. 2.5 When the complainant concerned was informed of this development, a further complaint was made in February 2011 to the effect that Eircom was acting in breach of his right to privacy by monitoring his internet activity without his permission. He alleged that this amounted to an ongoing breach of data protection law and requested that action be taken by the Commissioner against Eircom in respect of this alleged violation. 2.6 The Commissioner continued his investigation following receipt of this further complaint and, on the 16th September, 2011, he wrote to Eircom seeking further clarification on a number of issues. A response to this letter was sent by Eircom on the 7th October, 2011. This correspondence was shared with the record companies. On the 25th November, 2011, the Commissioner indicated via email to Eircom his view that the Protocol breached a number of provisions of the Data Protection Acts 1988-2003 (“the Data Protection Acts”) and the European Communities (Electronic Communications Networks and Services) (Privacy and Electronic Communications) Regulations 2011. The Commissioner drew attention to the judgment of the European Court of Justice in Case C-70/10 Scarlet Extended v Société belge des auteurs, compositeurs et éditeurs SCRL (SABAM), which had been delivered the previous day. The initial view of the Commissioner was that this judgment would render any Enforcement Notice moot as it “has made clear that the Protocol operated by Eircom is unlawful as a matter of European Law and that Eircom is therefore obligated to terminate its operation.” The Commissioner indicated that an Enforcement Notice was contemplated and included a draft of the contraventions which it was intended to cite in the Notice. The Commissioner asked Eircom for its views on this matter by close of business on the 28th November, 2011, allowing only one full working day to respond. In response, via email on the 28th November, 2011, Eircom indicated that it was of the opinion that the judgment in Scarlet Extended had “little relevance to the factual and legal circumstances governing Eircom’s Graduated Response” and asked whether the Commissioner could identify any specific aspect of the judgment which supported a contention that the Protocol was unlawful. Eircom also indicated its surprise regarding the proposal to issue an Enforcement Notice and stated its intent to appeal any such Notice. 2.7 The Enforcement Notice was issued by the Commissioner against Eircom on the 5th December, 2011, and required Eircom to immediately cease its operation of the Protocol, destroy any customer data held by it pursuant to the scheme and take any other steps necessary to ensure compliance with data protection law within sixty days. 2.8 It is appropriate, in my view, to note that the Commissioner's action in seeking to advance matters with very great speed over a period of just ten days in late November and early December, 2011 must be contrasted with the relatively leisurely pace with which these issues had been pursued up to that time. It seems appropriate to infer that the change of pace resulted from the Commissioner's view of Scarlet Extended but it now appears to be accepted that the Commissioner's initial impression of the implications of that case for the issues which arise in respect of the implementation of the Protocol was mistaken. Certainly there is nothing in the evidence before the Court to suggest that the issue of an Enforcement Notice had suddenly become urgent for any particular reason. 2.9 It is, of course, the case that all public authorities are legitimately concerned about incurring the costs of litigation. However, litigation can be an inevitable aspect of the carrying out by many public authorities of their statutory functions. But it does have to be said that one of the best ways of minimising the risk of unnecessary litigation (with its attendant costs) is by avoiding precipitated action. Likewise, it does need to be noted that both the High Court and the Supreme Court have now been engaged in significant hearings, doubtless at substantial cost, on purely procedural questions which could have been avoided had the Commissioner either become involved in the hearing before Charleton J. which was set up to determine whether there was any legal barrier to the implementation of the Protocol and/or had not initially opposed the application by the record companies to be joined to the statutory appeal in the Circuit Court. In either of those eventualities it is likely that the substantive issues which undoubtedly remain for decision could have been determined in proceedings involving the Commissioner without incurring the significant additional costs which now have arisen in determining purely procedural questions. 2.10 In any event, as previously indicated, Eircom elected to exercise its right of appeal to the Circuit Court pursuant to s. 26 of the Data Protection Acts on the 22nd December, 2011. That appeal sought to set aside the Notice and raised a number of grounds of appeal. 2.11 On the 20th January, 2012, the record companies, by Notice of Motion, sought to be joined as a notice party to the appeal. For reasons that will be analysed later the record companies only enjoyed at best a conditional right to appeal. The appeal and the application of the record companies were listed before the Circuit Court on the 24th January 2012 and were adjourned on consent on that date to allow for the filing of a replying affidavit. In that replying affidavit, the Commissioner reiterated that the Enforcement Notice was directed solely at Eircom as his concerns related to the data protection issues between Eircom and its subscribers. Whilst accepting the serious nature of the issues raised by the record companies, the Commissioner deposed to the fact that he was of the opinion firstly, that such issues were not relevant to the appeal and secondly, the joinder of the record companies would add greatly to the length and costs of the appeal due to the breadth of the issues likely to be raised. In those circumstances, the Commissioner asked the Court, if it was persuaded that the record companies have “something to add to it over and above Eircom” and was minded to grant the application, to do so on terms where the record companies would bear their own costs of participation. 2.12 On the 13th February, 2012, the record companies wrote to the Commissioner questioning the validity of the Enforcement Notice and calling on the Commissioner to withdraw it. If the Notice was not withdrawn within seven days, the record companies threatened to bring judicial review proceedings. In the interim, there had been a number of one week adjournments. Then, on the 15th February 2012, counsel for the Commissioner sought a hearing date for the application to join but counsel for the record companies objected to this and sought a further adjournment to enable the record companies to issue judicial review proceedings. This adjournment was granted. A letter in response to that of the 13th of February, 2012, was sent by the Commissioner on the 17th February, 2012. This letter attempted, inter alia, to outline again the position of the Commissioner regarding the joinder of the record companies to the statutory appeal. At paragraph 6 of that letter, it said, “[o]n 15 February our Counsel explained to the Circuit Court that whilst we did not see that you were adding anything to the appeal we had no major difficulty if the Court was minded to join you provided that, as an intervenor in the appeal you paid for your own costs.” 2.13 The record companies sought leave to bring judicial review proceedings (being these proceedings) on the 28th February, 2012. Amongst the reliefs claimed in these proceedings is an order of certiorari in respect of the Enforcement Notice and a number of declarations that the Enforcement Notice was made ultra vires by the Commissioner. Leave was granted on the same day by Kelly J. who further ordered a stay on the Circuit Court proceedings until the determination of the proceedings. 2.14 The judicial review proceedings came on before Charleton J. in the High Court. Eircom indicated that it was not opposing the relief sought and reserved its right to participate in the hearing. However, Eircom was asked by the High Court judge to address the court in relation to the validity of the Enforcement Notice and did so. In his judgment delivered on the 27th June, 2012, EMI Records (Ireland) Limited & Ors v The Data Protection Commissioner & Anor [2012] IEHC 264, Charleton J. analysed in detail the national and European legislation and case-law on this topic. In particular, he focused on the potential conflict between the privacy rights of some individuals and the intellectual property rights of others. He summarised his findings at para. 8.10, where he stated:
2.16 In that context it was alleged by the record companies that the Commissioner had failed to comply with s. 10(4)(a) of the Data Protection Acts, which provides that: “An Enforcement Notice shall … specify any provision of this Act that, in the opinion of the Commissioner, has been or is being contravened and the reasons for his having formed that opinion …”. Having found that the Notice contained “no reasons whatsoever”, Charleton J. held that their omission “vitiated its validity”. 2.17 The Commissioner had contended that the bringing of judicial review proceedings by the record companies was an abuse of process in the light of the availability of an alternative option in the form of the statutory appeal to the Circuit Court which option was said to be a more appropriate remedy. However, this argument was rejected by the court, holding that although Eircom had an automatic right of appeal, “no such appeal is automatically open to the record companies”. Later in section 12, Charleton J. stated that:
3. Supreme Court Proceedings to Date 3.2 On the 13th December, 2012, I directed that there be a modular trial of this appeal with the following two issues to be addressed first:
(ii) the correctness or otherwise of the argument by the record companies that Charleton J. was correct to hold that the Enforcement Notice was invalid for failure to give adequate reasons. 3.3 I will now turn to the reasons behind this sequencing of the hearing. Both of the issues outlined above have the potential to bring the proceedings to an end and render it unnecessary for this Court, on this appeal, to consider the substantive issues underlying the proceedings. First, in regard to issue (i), if the Commissioner is correct in saying that the proceedings should not be entertained because an appeal is a more appropriate remedy, then that would bring the proceedings to an end in this Court and the Circuit Court would be able to continue the presently adjourned s. 26 statutory appeal. Alternatively, if the record companies, who are supported by Eircom on this point, are correct in seeking to stand over the High Court ruling to the effect that the Enforcement Notice should be quashed because there was a failure to comply with the statutory duty to provide reasons, then none of the other issues which arise on this appeal would fall to be determined. 3.4 None of the parties contest that at the heart of these proceedings lie significant and important questions relating to privacy and intellectual property rights which will need to be determined in due course. In essence, those issues can be summarised into the question of whether the Protocol, which is a product of a private contractual arrangement, can legitimately result in a subscriber to an internet service provider having their broadband service terminated by that provider on foot of reports of alleged illegal uploading received through a third party (in this case, the record companies). Obviously, the record companies are seeking to protect their intellectual property rights by restraining the ability of internet subscribers from sharing the record companies’ material without any form of permission or remuneration. However, the process through which they seek to achieve this necessitates monitoring in some form of the subscriber’s internet usage. The monitoring process is not presently subject to any detailed regulation or independent oversight or scrutiny. It is thus contended that monitoring of this nature constitutes an invasion of that subscriber’s right to privacy and a violation of their rights under the Data Protection Acts and under EU law. 3.5 One can imagine that the methods through which monitoring occurs and breaches are identified, and the consequences of such breaches, have the potential to differ significantly in the absence of some form of overarching regime of regulation. Therefore, the extent to which rights are engaged, and are in conflict, will vary depending on the circumstances of each individual case. It is helpful, therefore, to set out a brief account of how the Protocol operates in the present case. 3.6 The IP address of any particular subscriber is allocated typically on a daily basis by an internet service provider, so that a user will have a different IP address from one day to the next. The record companies, through their agents, receive IP addresses of internet users who have allegedly uploaded material to the internet where the intellectual property rights of such material belongs to the record companies. The record companies or their agents cannot identify the alleged wrongdoer as they cannot link the IP address to any individual subscriber. The record companies, therefore, communicate this information and the respective IP addresses to Eircom, who do have the ability to link the allegedly offending IP addresses supplied with the appropriate subscribers. Eircom is then obliged under the Protocol to determine whether a breach of intellectual property rights has occurred on the basis of the information provided by the record companies. Eircom, itself, does not engage in any form of verification in respect of the information it receives. Once Eircom has determined that a breach has occurred, it notifies the subscriber identified of that infringement. Under the terms of the subscriber’s contract with Eircom, after three such infringements, the subscriber’s internet access will be suspended for a week. A fourth infringement will then result in a withdrawal of service by Eircom. The identity of any relevant subscriber is at no point provided to the record companies or any other person. There is also no restriction on a subscriber, who has had his service withdrawn, seeking access to the internet via another internet service provider operating within the State. If the subscriber receives other services from Eircom, these services are unaffected by the withdrawal of internet access. 3.7 While broad questions concerning the compatibility of such a regime with national and European Union law potentially arise it is important, in the context of the issues currently before the court, to record that those questions may not properly arise in these proceedings if the issues identified for this first module are determined in a particular way. If, for example, judicial review is found to be inappropriate then the statutory appeal would be the vehicle in which any such questions ought to properly be determined. Likewise if the determination of the trial judge that the Enforcement Notice should be quashed for lack of reasons is upheld then those broader issues cannot be addressed unless and until there exists new proceedings involving a properly reasoned Enforcement Notice. 3.8 Against the background of that analysis I now turn to the first issue relating to the availability of the statutory appeal. I propose first to consider the general principles applicable in that area. 4. The availability and appropriateness of an appeal
4.3 Therefore, it follows that where there is an adequate alternative remedy available and an applicant for judicial review fails to avail of that alternative, the court is likely to exercise its discretion against the applicant. 4.4 However, it should also be noted that the mere presence of an appeal mechanism, in and of itself, does not operate as a bar to relief in judicial review proceedings. Rather, as Denham J. pointed out at para. 26 in Stefan v Minister for Justice [2001] 4 IR 203:
4.6 Amongst other reliefs sought by the applicant in O’Connor v The Private Residential Tenancies Board [2008] IEHC 205 was an order of certiorari in respect of certain decisions of the Private Residential Tenancies Board and the prior decision of its adjudicator, including a decision to allow the notice party an extension of time to make a complaint. It was also open to the applicant, under s. 123 of Residential Tenancies Act 2004, to appeal to the High Court from the Tribunal in respect of a point law. After citing the passage from Abenglen quoted above, Hedigan J. ruled as follows:
… 4.7 A recent summary of the law in this area can be found in the judgment of Hogan J. in Koczan v Financial Services Ombudsman [2010] IEHC 407. At paras. 19 and 20 of his judgment, the following is said:
20. These cases must be, however, be regarded as the exception rather than the rule. It is well established that the Oireachtas must be presumed to know the law and the Oireachtas is, of course, well aware of the existence and parameters of the High Court’s judicial review jurisdiction. It follows, therefore, that the creation by legislation of a right of statutory appeal from an administrative decision which is not confined to an appeal on a point of law generally raises the inference - albeit a rebuttable inference - that the Oireachtas “must have intended that the Court would have powers in addition to those already enjoyed at common law” in respect of its judicial review jurisdiction: see Dunne v. Minister for Fisheries [1984] I.R. 230 at 237 per Costello J.. That in turn suggests that the Oireachtas further intended that the statutory appeal would form the vehicle whereby the entirety of an appellant’s arguments could be ventilated in such an appeal without any need to commence a further set of proceedings, at least to the extent that it was procedurally possible to do so: see, e.g., the comments in this regard of Laffoy J. in Teahan v. Minister for Communications (No.1) [2008] IEHC 194.” 4.9 However, there will be cases, exceptional to the general rule, where the justice of the case will not be met by confining a person to the statutory appeal and excluding judicial review. The set of such circumstances is not necessarily closed. However, the principal areas of exception have been identified. In some cases an appeal will not permit the person aggrieved to adequately ventilate the basis of their complaint against the initial decision. As pointed out by Hogan J. in Koczan, that may be so because of constitutional difficulties or other circumstances where the body to whom the statutory appeal lies would not have jurisdiction to deal with all the issues. Likewise, there may be cases where, in all the circumstances, the allegation of the aggrieved party is that they were deprived of the reality of a proper consideration of the issues such that confining them to an appeal would be in truth depriving them of their entitlement to two hearings. 4.10 However these and any other examples must be seen as exceptions to the general rule. In addition, the conduct of the party seeking to question the initial decision is a factor although not, as Barron J. pointed out in McGoldrick, necessarily a decisive one. 4.11 That there is at least a form of statutory appeal available in this case, that an appeal was initiated by Eircom and that the record companies sought, at least initially, to join in that appeal is, of course, the case. The default position, must, therefore, be that such appeal is the appropriate vehicle by which to resolve any issues concerning the Enforcement Notice in this case. The real question which arises is as to whether this is one of those exceptional cases where a party, such as the record companies, is entitled to seek judicial review notwithstanding the conditional availability (and, indeed, partial invocation) of any right to appeal. I, therefore, turn to that question. 5. Is this case an exception? 5.2 As already noted, one of the most common bases on which the courts have been persuaded to accept that judicial review may, in the circumstances of an individual case, be the appropriate remedy, notwithstanding the availability of a statutory appeal, is where aspects of the right of appeal are found to be inadequate to allow all of the issues which the aggrieved party legitimately wishes to raise to be determined. The reason for this is obvious. The whole point of an appeal system is that an aggrieved party is entitled to seek to have the appellate body concerned review the initial decision in accordance with the scope of the appeal provided for. However, the scope of appeal can vary from case to case. In some circumstances the appeal amounts to a complete re-hearing so that what transpired before the body making the initial decision is almost irrelevant save as to background. In some cases an appeal will lie against the full decision save that the appeal will be conducted on the basis of the evidence or materials considered at first instance and, frequently, therefore, by affording significant weight to the assessment of the facts by the first instance body. 5.3 More restrictively still, an appeal may only lie on a point of law so that much greater weight may be attached to the decision at first instance. There can, of course, be variations on those themes. The type of appeal which may lie can, therefore, fall somewhere along a broad spectrum. It follows that the issues which can be canvassed on appeal are likewise varied. In addition, the extent to which an appellate body can involve itself in a consideration of the adequacy of the process by which the original decision was made or other issues which typically arise in judicial review proceedings concerning the lawfulness of the original decision can vary considerably. 5.4 It follows that a court, when considering whether an appeal is an adequate remedy, is required to analyse the complaints made by a party seeking judicial review and determine whether, in the light of those complaints, the appellate body in question can consider same and, if they be made out, provide an appropriate remedy. Even if the appellate body has a sufficiently broad jurisdiction, there may be cases where, looking at the process as a whole, a party might nonetheless be said to have been deprived of their legal entitlement by being required to pursue an appeal from a fundamentally defective first instance determination, thereby depriving the party concerned of their statutory entitlement to both a hearing and an appeal. 5.5 It is against that background that the statutory appeal at issue in these proceedings needs to be assessed. The appeal is provided for by s. 26 of the Data Protection Acts, which provides as follows:
(a) a requirement specified in an Enforcement Notice or an information notice, …. and such an appeal shall be brought within 21 days from the service on the person concerned of the relevant notice or, as the case may be, the receipt by such person of the notification of the relevant refusal or decision. … (3) (a) Subject to paragraph (b) of this subsection, a decision of the Court under this section shall be final. (b) An appeal may be brought to the High Court on a point of law against such a decision; and references in this Act to the determination of an appeal shall be construed as including references to the determination of any such appeal to the High Court and of any appeal from the decision of that Court…."
5.7 It is also, in my view, very important to note that the only party who can appeal as of right is the party on whom the Enforcement Notice is served. A party who may be affected by an Enforcement Notice can, however, be joined in the appeal. One curious feature of the process that was followed in the context of the statutory appeal to the Circuit Court in this case is that it would appear that the application to join the record companies was brought by the record companies themselves. Strictly speaking, under the provisions of O.60, r.6 of the Rules of the Circuit Court, it would appear that it was only Eircom or the Commissioner (being parties to the appeal) who could properly apply to have another party joined. Indeed, the record companies' application to join was, on its terms, brought under O.6, r.4 of the Rules of the Circuit Court (which makes general provision for the joinder of parties) and/or, it would appear, an assertion that the Circuit Court enjoyed an inherent jurisdiction to join. No mention was made in the application of the specific rule (being O.60, r.6) which deals with the joinder of parties in appeals under the Data Protection Acts. 5.8 For whatever reason, however, no objection to the record companies’ application to join appears to have been taken either by the Commissioner or Eircom based on an assertion that there was no jurisdiction at all to join outside of the circumstances contemplated in O.60, r.6 and the fact that that rule does not allow a non-party to make an application to be joined. It follows that, whatever the confusion in this case, a feature of the appeal system provided for in the Data Protection Acts and in the Rules of the Circuit Court is that a party affected but who is not itself a party on whom an Enforcement Notice is served, may well have no right even to apply to be joined and may well be dependent both on there being an appeal by a person on whom an Enforcement Notice is served and an application by such person to have them joined being made in order that they might have any entitlement to be heard. While one aspect of those requirements (being the requirement that an application be join be brought by someone who is already a party) was not enforced on the facts of this case, the regime which I have sought to analyse only goes to emphasise the highly conditional nature of any right of appeal which a party in the position of the record companies enjoys. 5.9 In that context, it is also necessary to have regard to the sequence of events which occurred when the record companies sought to be joined in this case. It seems to me to be fair to characterise the initial position of the Commissioner as being one which amounted to opposition to the record companies becoming joined to the proceedings. It is, of course, entirely reasonable for any party to be concerned that the costs of proceedings in which they are necessarily involved will not be increased by the presence of additional parties whose involvement may have the effect both of prolonging the procedure and, if the proceedings are unsuccessful, adding to the number of parties who may seek costs. However, in that context a number of points needs to be noted. 5.10 First, there is a difference between an entitlement of a party to be heard, on the one hand, and the reasonableness of such a party (particularly viewed in the context of costs) in exercising their entitlement to be heard, on the other. Any party affected in a material way by a public law measure has a prima facie entitlement to be heard in proceedings which challenge the validity or terms of the measure concerned. However, in many such cases the interest of a party affected will not differ in any material way from the interests of other parties more directly involved. While all such affected parties undoubtedly have the right to seek to be heard, it does not follow that the exercise by such parties of any right to be heard carries with it an entitlement to be paid their costs even if their side is ultimately successful. It is entirely reasonable to require that parties should only be paid costs, even if successful, if their involvement in the proceedings concerned was necessary for the protection of their interests in the sense that there were arguments which they could put before the Court or evidence or materials which could be presented which added to the case beyond the argument or evidence likely to be furnished by those (frequently a relevant public authority) primarily charged with standing over the measure which is challenged. Parties who do not add to the case to any great extent, while entitled to be heard, cannot reasonably be expected to be paid their costs. Indeed, in an extreme case, it would be open to the Court to penalise such a party in costs if it was felt that the proceedings had, by virtue of the unnecessary involvement of the party concerned, been unduly lengthened (and thus made more expensive) without that party having added anything of substance to the argument or the evidence. In addition, it may well be that there will be cases where a party could only reasonably involve themselves at an early stage of the proceedings (perhaps up to and including the filing of written submissions) so as to be satisfied that all matters which they wished to canvas were before the Court but not, in such a case, involving the additional and frequently significant expense of being present at an oral hearing when it had become clear from the written procedure that their presence would not add to the case. Indeed, the position adopted by Eircom in these judicial review proceedings before the High Court reflects such an analysis. 5.11 It should, however, be noted that there is also a significant difference between a party, as it were, putting down a marker in respect of costs at an early stage of the proceedings, on the one hand, and a party seeking an order, at that early stage, which would bind the parties and the Court to a particular approach to costs in respect of the future progress of the case, on the other. Assuming that a party is truly affected by a measure under challenge then such party is, at the very minimum, entitled to be satisfied that their interests will, in reality, be fully protected in the proceedings. That is not achieved by either a pre-emptive strike which suggest that they should not be allowed become involved at all or, alternatively, should not be allowed to become involved without giving a guarantee that they will not be able to recover their costs if successful. 5.12 However, what the Commissioner appears, at least initially, to have done in this case is to suggest that the record companies should not be permitted to be heard at all rather than solely seeking to place a marker against the record companies recovering costs at the end of the day in the event that the proceedings were successful. So far as costs were concerned the initial position of the Commissioner appears to have been that the price which the record companies should have to pay if they were, contrary to the Commissioner's primary submission, to be allowed join in the proceedings, would be that there should have been some form of guarantee in advance concerning the record companies' costs. 5.13 It is true to say that, at a later stage in the process, but only after the possibility of judicial review was raised in correspondence, the Commissioner seems to have adjusted his position to one which might reasonably be characterised as accepting that the record companies should be permitted to join in the proceedings but only on terms relating to costs. 5.14 It is against such a background that the decision of the record companies to seek judicial review needs to be viewed. It is true that the record companies had sought to involve themselves in the statutory appeal process although, as has been pointed out, they had no absolute or statutory right to become so involved, required an order of the Court in that regard and, indeed, may well not have been entitled to apply to be joined at all. It is also of particular relevance that the only party on whom the statutory right of appeal is directly conferred is the party to whom a relevant Enforcement Notice is directed. It is, therefore, less easy to apply the underlying principle, to which reference has already been made, which places weight on the assumption that the Oireachtas intended that an appeal was to be the appropriate means of reviewing an Enforcement Notice, to the situation in which the record companies found themselves for the statutory scheme did not confer any direct right on the record companies to challenge the Enforcement Notice by means of such an appeal. 5.15 It is, of course, true that had the record companies successfully applied to become notice parties without any limitation as to degree of participation or the right to recover costs if successful the situation might well be different. In such a situation, whatever might have been the theoretical position, the record companies would in fact have had a full right to engage in the issues which would arise on the statutory appeal on the same terms as would apply in respect of a judicial review. That being so a court might well have to engage in a more detailed analysis of the scope of appeal which would, in fact, have been available so as to assess whether an appeal would have provided an adequate remedy in respect of the issues which it was sought to raise. However, the process never got to that point largely because of the position adopted by the Commissioner. The fact that, at the level of principle, an appeal process to which a party has been unconditionally admitted might provide an adequate remedy, thus excluding judicial review, does not mean that, unless and until that party has been admitted on an unconditional basis to the relevant appeal process, such an appeal can necessarily be regarded as providing such an adequate remedy. 5.16 Be that as it may, it does have to be recognised that the precise scope of the issues which might be canvassed on an appeal to the Circuit Court by means of such an appeal is not clear. That lack of clarity also needs to be seen in the context of the fact that the Commissioner suggested, in his affidavit opposing the record companies' application to be joined, that no issues relevant to the record companies were within the scope of the appeal. By adopting such a position the Commissioner reasonably led the record companies to have legitimate concerns as to the scope of the matters which might be capable of being canvassed on a statutory appeal even if they were allowed, by the Court, to become notice parties. In that context it is important to return to the basic process provided for by the Protocol. As earlier noted the record companies, through the agency of operators who appear to be able to access relevant information directly from the internet, obtain information as to the IP addresses of persons who seem to be engaged in the sort of file sharing which is said to be a breach of the record companies' copyright entitlements. On the basis of the evidence and materials currently available, there does not appear to be any suggestion that Eircom is involved in that part of the process at all. It is not clear as to whether the Commissioner asserts that any breach of the Data Protection Acts or EU law occurs in that part of the process. If it is so contended, then it is difficult to see how such a position can be reconciled with the Commissioner's assertion that the Enforcement Notice is directed solely to Eircom and that the record companies are not, therefore, directly relevant to the issues arising in the appeal to the Circuit Court. Be that as it may, I am satisfied that, not least because of the position adopted by the Commissioner, there was, and remains, legitimate doubt as to the precise range of issues which are capable of being dealt with within the parameters of the statutory appeal in this case. 5.17 In the circumstances of this case I would place particular weight on the fact that the record companies have no statutory right of appeal at all. As pointed out, the underlying rationale of much of the relevant jurisprudence stems from an assumption that those on whom a right of appeal is conferred should, in the absence of sufficiently weighty countervailing circumstances, exercise their right of appeal rather than invoke judicial review. That rationale has no application in the case of a party who does not have a right of appeal. While that rationale might have some limited relevance in a case, such as this, where a party has at least a possibility of becoming involved in an appellate process (and much greater relevance if the record companies had actually achieved an unconditional involvement in the appeal process), it seems to me that the weight to be attached to such a conditional entitlement to appeal (which after all could only be exercised in the event that the right to appeal is invoked in the first place by a party, Eircom in this case, who has the statutory right to appeal and could well have been refused on the basis that the record companies had no right to apply) must be limited. When to that is added, on the facts of this case, the initial position and belated change of position by the Commissioner such that, at the time when a decision to seek judicial review was made, the question of the entitlement of the record companies to be involved in the statutory appeal was open to question, coupled with the doubts which surrounded the scope of any appeal which might be pursued, it seems to me that an analysis of all the circumstances suggests that the limited and conditional possibility of appeal which the record companies might have enjoyed in this case is not such as could have rendered the invocation of the alternative of judicial review an abuse of process. 5.18 For those reasons, it seems to me that the trial judge was correct in concluding that this was one of those cases, exceptional to the general rule, in which the record companies were entitled to pursue judicial review notwithstanding the possible availability of a statutory appeal. Having concluded that judicial review was, in those circumstances, not inappropriate, it is next necessary to turn to the questions of reasons. 6. The obligation to give reasons
6.2 So far as the question as to the type of reasons which need to be given is concerned, this Court has had occasion to consider such issues in a number of cases. One of the earlier cases, The State (Sweeney) v Minister for the Environment & Anor [1979] 1 I.L.R.M. 35, concerned, amongst other things, the requirement of a planning authority to give reasons for a refusal of an application for planning permission. At p. 37 of his judgment, Finlay P. stated:
Unless that is so then the constitutional right of access to the courts to have the legality of an administrative decision judicially reviewed could be rendered either pointless or so circumscribed as to be unacceptably ineffective.”
6.6 The next issue concerns the question of where it is appropriate to look to find such reasons. In Sister Mary Christian v Dublin City Council [2012] IEHC 163, the High Court was faced with a claim that Dublin City Council had failed to give sufficient reasons said to be required under the Planning and Development Act, 2000 (as amended) in relation to parts of the Dublin City Development Plan. As part of that enquiry, the Court also had to examine whether it was necessary for those reasons to appear in the development plan itself. At para. 9.2 of my judgment, I concluded as follows:
6.9 Where, for example, an adjudicator makes a decision after a process in which both sides have made detailed submissions it may well, as Fennelly J. pointed out in Mallak, be that the reasons will be obvious by reference to the process which has led to the decision such that neither of the parties could be in any reasonable doubt as to what the reasons were. But it seems to me that, in a case where any party affected by a decision could be in any reasonable doubt as to what the reasons actually were, it must follow that adequate reasons have not been given. 6.10 There may, of course, be cases where it is easy to see what reasons have been given and where the real issue is as to whether those reasons are adequate. However, the first point has to be to determine what reasons, if any, have been given, and where those reasons may be found. 6.11 It follows that in reasons cases there may well be three questions raised:- 1. Do reasons have to be given and if so what type of reasons; 2. Where can the reasons be found, and by reference to what evidence or materials can the Court objectively ascertain the reasons; and 3. When the reasons given, if any, have been ascertained, are those reasons sufficient to meet the requirements established in the case law? 6.12 Given the statutory requirement for reasons in this case and the obvious obligation that those reasons be sufficient to enable any party affected by an Enforcement Notice to form a view as to whether it was lawful and whether there might be a realistic chance of successfully pursuing an appeal (together with preparing for such an appeal), no great questions arise in respect of item 1. In reality it is item 2 which forms the controversy in this case, for the trial judge held that there were no reasons at all to be found in the decision. If that be correct then the question of whether the reasons were adequate to meet the case law would not, of course, arise. On that basis, it is necessary to turn to the facts of this case. 7 The Facts of this Case 7.2 I can see that in other cases, not involving a specific statutory requirement that the reasons be found in the decision, it might be inherently obvious from the form of the decision as to the reasons for the making of same and that this might be sufficient to render the process fair. An assertion that a certain set of facts existed which amounted to a breach of a specific obligation might, in a case where there could be little doubt but that if the facts were true a breach would have occurred, meet the test of the reasons being inherently obvious. However, in any event, and even if it were possible to ignore the statutory requirement that reasons be found in the notice itself, it does not seem to me that such a test would be met on the facts of this case. As I have already pointed out, on the basis of the evidence and materials currently available, it appears to be accepted that the method by which the Protocol works is that all Eircom does is to receive a series of IP addresses from the record companies, write the appropriate letter to the customer corresponding with that IP address, and invoke the suspension or termination provisions of the Protocol as appropriate. On that basis it is not inherently obvious as to why such activity necessarily involves a breach of data protection law. 7.3 In addition, it may be that in other situations there could be cases where the necessary reasons are obvious from the process leading up to the issuance of a relevant decision. However, given the express statutory requirement that the Enforcement Notice itself specify the reasons, it seems to me that an Enforcement Notice under the Data Protection Act could not be such a case. Even if that were not so, a number of aspects of the process in this case require analysis. First, it needs to be noted that, while the record companies were copied with some of the relevant correspondence, they were not copied with all of it. It seems clear that the record companies are potentially affected by the Enforcement Notice. After all, the record companies have entered into contractual arrangements with Eircom in settlement of court proceedings and where that settlement has been ruled by the Court as being in compliance with data protection law. An Enforcement Notice which has, as its effect, a requirement that Eircom not comply with that court approved contractual obligation necessarily affects, in a very serious way, the record companies. As a party affected, the record companies are entitled to know the reasons for the Enforcement Notice so as to enable them to consider what legal options, whether by seeking to be involved in a statutory appeal or judicial review, may be open to them. 7.4 The reasons must be adequate to meet the record companies' needs in that regard. As pointed out, it may well be obvious to the parties involved in an adversarial process as to what the reasons for the decision of an adjudicator were in the light of the case made to that adjudicator and the adjudicator's decision. However, where a legally binding measure is sought to be put in place which affects parties beyond those who were part of the process leading to the adoption of the measure concerned, then there is a greater onus on the decision-maker to ensure that the reasons are transparent not just to those who were involved in the process, but to anyone else who might be affected as well. In the planning process, for example, all documents relevant to that process would normally be available to any interested party. If the reasons for a planning decision require reference to the process leading to that planning decision, then it is reference to a process which is transparently open to all. However, where, as here, the process affected the record companies but only directly involved Eircom and the Commissioner, it will inevitably be more difficult to satisfy the requirement for reasons from a consideration of the process. 7.5 I should say that I am by no means convinced that, even so far as Eircom is concerned, the reasons would be obvious from the process. However, I am absolutely satisfied that, from the perspective of the record companies, it could not be said that the reasons can definitively be inferred from the process. Thus even if it were (contrary to my primary finding on this point) possible to infer reasons from the process in a case where, as here, there is an express statutory requirement that the reasons be specified in the notice itself, I am not satisfied that the process in this case would meet the necessary test in any event. 7.6 I am, therefore, satisfied that the trial judge was correct to conclude that there was a complete absence of reasons in this case and that the Enforcement Notice, therefore, was unlawful as being in breach of the statutory requirement for reasons under s. 10(4)(a) of the Data Protection Acts. 7.7 I should not leave the question of reasons without touching on a further argument made by counsel for the Commissioner at the hearing of the appeal. Counsel contended that the parties (and in particular the record companies) did not appear to have encountered any real difficulty in addressing the legal issues which arose from the Enforcement Notice at the hearing before Charleton J. On that basis it was argued that the record companies must have fully understood the reasons why the Enforcement Notice was served for, it was said, without understanding those reasons it would have been impossible for the record companies to properly engage with the substantive issues which were debated before the High Court. It may well, of course, be the case that a party who is affected by a legally binding measure may be able to infer why the measure was put in place. However such matters should not be left to inference at least in cases where there is an express statutory requirement that reasons be included in the document putting the measure in force and where the reasons might be open to any reasonable doubt. Legal certainty requires that the reasons can be determined with some reasonable measure of precision. The fact that a party may, in many circumstances, be able to make a good fist of inferring the reasons does not meet the legal obligation of a statutory decision maker to ensure that the reasons can be determined with adequate certainty. On that basis it does not seem to me that the argument put forward on behalf of the Commissioner, which derived from the extent to which the record companies were able to address substantive issues in the High Court, provides anything like an answer to the complaint that the Enforcement Notice failed to specify the reasons in accordance with the statutory requirement so to do. 8 Conclusions 8.2 In addition, I am satisfied that the trial judge was correct in holding that the Enforcement Notice is invalid because of the absence of any reasons. 8.3 It follows, in my view, that the appeal should be dismissed and the order of the trial judge affirmed.
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