LAST UPDATE | 16 Sep 2021

WHATSAPP IRELAND HAS launched a High Court challenge aimed at setting aside the €225 million fine handed out to it by the Irish Data Protection Commission (DPC) earlier this month.

WhatsApp Ireland — which is the Facebook-owned company’s main European arm — was fined after the DPC found it had failed to comply with its obligations under the European Union’s General Data Protection Regulation (GDPR) on data protection in several respects.

The DPC’s investigation looked at issues including the service’s processing of data of users and non-users of WhatsApp’s services, and the sharing of personal data between WhatsApp and Facebook companies.

It found, among other things, that information provided by WhatsApp to users about how and why it processes their data was “unnecessarily ambiguous” and “ill-defined

Data Protection Commissioner Helen Dixon reached her decision in August. 

Initially, her office wanted to fine WhatsApp Ireland €50 million but was forced to increase the sum to €225 million following a decision by Europe’s overarching privacy watchdog, the European Data Protection Board.

As well as imposing the fine, the DPC ordered WhatsApp to bring its data processing operation into compliance with GDPR requirements.

But WhatsApp Ireland now claims that the DPC’s decision, which was made under the 2018 Data Protection Act,  is unconstitutional and incompatible with the European Convention on Human Rights.

Represented by Declan McGrath SC, WhatsApp claims that the DPC’s decision is flawed and should be set aside in its entirety.

The imposition of a fine of the magnitude of €225m, WhatsApp claims, constitutes the imposition of a criminal sanction.

The size of the fine constitutes an interference with WhatsApp’s constitutional property rights, it claims.

WhatsApp further alleges that its rights to fair procedures have been breached.

The 2018 Act does not provide for a full rehearing or a right of appeal in respect of all the DPC’s findings against it.

The limited appeal process contained in the 2018 Act only allows WhatsApp to challenge the administrative fine, it is claimed.

WhatsApp claims that the DPC, which made the decision to open the investigation into WhatsApp, does not constitute an independent and impartial tribunal.

The company is seeking an order quashing the DPC decision and declarations from the court that certain provisions of the 2018 Data Protection Act are invalid and unconstitutional, and are incompatible with the State’s obligations under the European Convention on Human Rights.

The judicial review proceedings were mentioned before Ms Justice Leonie Reynolds at Thursday’s vacation sitting of the High Court.

The matter was adjourned to a date in October when the new legal term commences.

In a statement, a spokesperson for WhatsApp said: “WhatsApp is committed to providing a secure and private service.

“We have worked to ensure the information we provide is transparent and comprehensive and will continue to do so. 

“We disagree with the decision regarding the transparency we provided to people in 2018 and the penalties are entirely disproportionate. We are appealing this decision.”

Additional reporting by Ian Curran