knowledge 2 September 2024 |

ICCL designated as Ireland’s first qualified entity under the Representative Actions Act 2023: what to expect

QEs can bring representative actions on behalf of groups of consumers in respect of infringements occurring on or after 25 June 2023 of a wide range of EU consumer protection laws identified in the Act in areas such as financial services, data protection and telecommunications.

What to expect from ICCL as a QE

ICCL is a non-profit organisation that aims to defend and promote individuals’ civil liberties and human rights. ICCL identify defending digital rights as a particular work focus; its Senior Fellow, Mr Johnny Ryan has issued various proceedings against “Big Tech” in the European Union. Dr Ryan is the Director of “Enforce”, a new unit launched by ICCL in November 2023, which “advocates, investigates, and litigates to protect human rights in the digital era”. ICCL has also been a critic of the Irish Data Protection Commission’s (the “DPC”) regulation of “Big Tech”.

With a view to anticipating the types of representative actions that ICCL may take, we consider below its recent activities in the digital rights space:

• In 2022, Dr Ryan of the ICCL issued judicial review proceedings challenging the DPC’s alleged failure to handle a complaint made under the General Data Protection Regulation (“GDPR”) and the Data Protection Act 2018 concerning data processing by Google Ireland Limited for targeted advertising through a real time bidding (“RTB”) system. The application for judicial review was dismissed by the High Court, which dismissal was upheld by the Court of Appeal.² Dr Ryan has also been involved in proceedings in other jurisdictions relating to RTB.
• In its 2023 Annual Report, in a section titled “Breaking Big Tech’s Power”, ICCL states it has issued proceedings against Google in Ireland “to force it to reveal what it does with people’s data”.
• ICCL made submissions at EU and Ireland level in relation to the Artificial Intelligence Act.
• ICCL made submissions to Coimisiún na Meán advocating that the Online Safety Code provide that the recommender system, which recommends content based on user behaviour data, be turned off by default.

Funding

In the absence of third party funding in Ireland and in light of the maximum fee of €25 that can be charged by a QE to consumers wishing to be represented, it remains to be seen how not-for-profit organisations will fund representative actions. The Report on the Pre-Legislative Scrutiny of the General Scheme of the Bill³ noted “[t]he ICCL state that the General Scheme has a fatal contradiction: it allows non-profit organisations to bring collective redress litigation in Ireland, but it also preserves the prohibition against their raising the funds to do so”.

In its 2023 Annual Report, ICCL states that the majority of its funding comes from charitable trusts and foundations which are committed to supporting human rights and civil liberties.

Outlook

ICCL’s past activities suggests that any representative actions it brings may relate to infringements by “Big Tech” in the digital rights space – the funding of which remains to be seen.

For further information on the Act, see our previous briefings here and here.

Also contributed to by Hannah Collins