Data Protection (Amendment) Bill 2018: First Stage

I move:

That leave be granted to introduce a Bill entitled an Act to amend the Data Protection Act 2018 in order to protect a child's personal data from being processed for marketing purposes and to provide for related matters.

I know the mere mention of data protection legislation will send shivers down the spines of most Deputies. I am pleased to say that the Data Protection (Amendment) Bill 2018 proposes only one amendment to one section of the legislation that was enacted by the Houses of the Oireachtas earlier this year. The section the Bill seeks to amend, or rather to replace, is section 30. The version of section 30 that was enacted deals with the micro-targeting and profiling of children. It provides expressly that it would be an offence under the Act for any company or corporate body to process the personal data of a child as defined by section 29 for the purposes of direct marketing, profiling or micro-targeting.

The purpose of section 30, as enacted, is to protect children from being marketed junk food and drinks. The total lifetime cost of childhood obesity in Ireland is estimated to be approximately €4.6 billion. In addition, there is a significant problem with the number of children experiencing childhood obesity. At present, research estimates that 55,000 children currently living in Ireland and 85,000 on the island of Ireland will die prematurely due to being overweight or obese. We note research by the World Obesity Federation which predicts that, by 2025, up to 141,000 schoolchildren in Ireland will be overweight or obese and as many as 9,000 will have impaired glucose intolerance. The consequences of childhood obesity are significant, not just for the individual child as he or she develops into adulthood but also for the healthcare system.

The purpose of section 30 is to deal with that problem. However, the Minister for Justice and Equality did not commence the section as a result of advice he received from the Office of the Attorney General to the effect that it is incompatible with the general data protection regulation, GDPR. There are two concerns in this regard. The section, as enacted, expands upon the permitted restrictions to the processing of personal data. There was a concern that the term "micro-targeting" was non-specific and undefined and that, consequently, people who were committing an offence did not know the specific nature of that offence and that, as a result, the provision would be unfair on them. The Office of the Attorney General wrote to the European Commission outlining its concerns and asked it for its views regarding the compatibility of section 30 of the Act. The Office of the Attorney General confirmed that the section would not be brought into effect until such time as it received information and advice from the Commission.

We note that advice was provided by the European Commission which clarified that, as set out in recital 38 of the GDPR, children merit special protection, particularly where the personal data of children is being used for marketing or creating personality-of-user profiles. The letter confirmed that while direct marketing to children is a permissible activity under the GDPR, this provision must be balanced by the interests of fundamental rights and freedoms of the data subject, which require protection of personal data, especially where the data subject is a child. Consequently, the processing of personal data of a child for the purposes of direct marketing is not unlawful.

The purpose of the Bill is to introduce a new wording for section 30, which seeks to overcome the concerns identified by the Office of the Attorney General and to take into account the advice presented by the European Commission. The wording is consistent with the wording of Article 22 of the GDPR and the rights and restrictions it introduces. It removes the reference to there being "an offence" and replaces it with the word "unlawful", and it will make it easier for a data subject to vindicate his or her rights under the Data Protection Act. It also removes any debate as to whether an offence has been lawfully created. The Bill proposes to amend section 30 of the Data Protection Act so that we can seek to give effect to the protection that no doubt everyone in the House believes should apply to protect children from micro-targeting, particularly in the context of junk food and junk drinks.

Is the Bill opposed?

Question put and agreed to.

Since this is a Private Members' Bill, Second Stage must, under Standing Orders, be taken in Private Members' time.

I move: "That the Bill be taken in Private Members' time."

Question put and agreed to.