Data Protection Act 1988

Codes of practice.

13

13. F40 [ ]

Annotations:

Amendments:

F40

Repealed other than for certain excepted purposes (25.05.2018) by Data Protection Act 2018 (7/2018), s. 7(1)(g), (4), S.I. No. 174 of 2018. The excepted purposes in subs. (4) are 7/2018, s. 8(1)(b), (2), (3). See C-note below.

F41

Substituted (1.07.2003) by Data Protection (Amendment) Act 2003 (6/2003), s. 14(1)(a), S.I. No. 207 of 2003.

F42

Inserted (1.07.2003) by Data Protection (Amendment) Act 2003 (6/2003), s. 14(1)(b), S.I. No. 207 of 2003.

Modifications (not altering text):

C60

Section repealed, but retained (see below) for certain excepted purposes, (25.05.2018) by Data Protection Act 2018 (7/2018), s. 7(1)(g), (4), S.I. No. 174 of 2018. The excepted purposes in subs. (4) are 7/2018, s. 8(1)(b) (the processing of such data under the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (11/2014) or the Vehicle Registration Data (Automated Searching and Exchange) Act 2018 (5/2018) to the extent that the Act of 1988 is applied in those Acts) and s. 8(2), (3) (transitional provisions).

13. (1) The Commissioner shall encourage trade associations and other bodies representing categories of data controllers to prepare codes of practice to be complied with by those categories in dealing with personal data.

F41 [ (2) The Commissioner shall

( a )     where a code of practice (referred to subsequently in this section as a code) so prepared is submitted to him or her for consideration, consider the code and, after such consultation with such data subjects or persons representing data subjects and with the relevant trade associations or other bodies aforesaid as appears to him or her to be appropriate

(i)     if he or she is of opinion that the code provides for the data subjects concerned a measure of protection with regard to personal data relating to them that conforms with that provided for by section 2, sections 2A to 2D (inserted by the Act of 2003 ) and sections 3 and 4 (other than subsection (8)) and 6 of this Act, approve of the code and encourage its dissemination to the data controllers concerned, and

(ii) in any event notify the association or body concerned of his or her decision to approve or not to approve the code,

( b )     where he or she considers it necessary or desirable to do so and after such consultation with any trade associations or other bodies referred to in subsection (1) of this section having an interest in the matter and data subjects or persons representing data subjects as he or she considers appropriate, prepare, and arrange for the dissemination to such persons as he or she considers appropriate of, codes of practice for guidance as to good practice in dealing with personal data, and subsection (3) of this section shall apply to a code of practice prepared under this subsection as it applies to a code,

( c )     in such manner and by such means as he or she considers most effective for the purposes of this paragraph, promote the following of good practice by data controllers and, in particular, so perform his or her functions under this Act as to promote compliance with this Act by data controllers,

( d )     arrange for the dissemination in such form and manner as he or she considers appropriate of such information as appears to him or her to be expedient to give to the public about the operation of this Act, about the practices in processing of personal data (including compliance with the requirements of this Act) that appear to the Commissioner to be desirable having regard to the interests of data subjects and other persons likely to be affected by such processing and about other matters within the scope of his or her functions under this Act, and may give advice to any person in relation to any of those matters. ]

(3) Any such code that is so approved of may be laid by the Minister before each House of the Oireachtas and, if each such House passes a resolution approving of it, then—

( a) in so far as it relates to dealing with personal data by the categories of data controllers concerned—

(i) it shall have the force of law in accordance with its terms, and

(ii) upon its commencement, references (whether specific or general) in this Act to any of the provisions of the said sections shall be construed (or, if the code is in substitution for a code having the force of law by virtue of this subsection, continue to be construed) as if they were also references to the relevant provisions of the code for the time being having the force of law,

and

( b) it shall be deemed to be a statutory instrument to which the Statutory Instruments Act, 1947, primarily applies.

(4) This section shall apply in relation to data processors as it applies in relation to categories of data controllers with the modification that the references in this section to the said sections shall be construed as references to section 2 (1) (d) of this Act and with any other necessary modifications.

F42 [ (5) The Commissioner shall be paid by a person in relation to whom a service is provided under this section such fee (if any) as may be prescribed and different fees may be prescribed in relation to different such services and different classes of persons.

(6) In proceedings in any court or other tribunal, any provision of a code, or a code of practice, approved under subsection (3) of this section that appears to the court or other tribunal concerned to be relevant to the proceedings may be taken into account in determining the question concerned. ]

C61

Application of section extended (1.07.2011) by European Communities (Electronic Communications Networks and Services) (Privacy and Electronic Communications) Regulations 2011 (S.I. No. 336 of 2011), reg. 28.

Power to include requirements under these Regulations in codes of practice under the Act of 1988

28. The Commissioner’s functions under section 13 of the Act of 1988 extend to requirements imposed under these Regulations.

Editorial Notes:

E39

Data Protection (Amendment) Act 2003 (6/2003), s. 14(2) provides for the continuation in force of a code of practice approved under s. 13(2) before its amendment. It appears that no such code of practice exists.

E40

Previous affecting provision: power of Commissioner extended (6.11.2003) by European Communities (Electronic Communications Networks and Services) (Data Protection and Privacy) Regulations 2003 (S.I. No. 535 of 2003), reg. 17L as inserted (20.12.2008) by European Communities (Electronic Communications Networks and Services) (Data Protection and Privacy) (Amendment) Regulations 2008 (S.I. No. 526 of 2008), reg. 9; revoked (1.07.2011) by European Communities (Electronic Communications Networks and Services) (Privacy and Electronic Communications) Regulations 2011 (S.I. No. 336 of 2011), reg. 35, subject to transitional provisions in reg. 34.