Contents

1. Summary
   1. Facts
   2. Holding
2. Comment
3. Further resources
4. The Decision

Summary

The applicant sought judicial review of a Data Protection Commissioner's determination regarding the right to erasure. The court found that Section 64 of the Data Protection Act stipulates that appeals, not judicial reviews, should address grievances with the Commissioner's decisions. As such, the court struck out the application as misconceived and an abuse of process, with costs awarded.

Facts

This is an application for judicial review filed by a company against a determination made by the Office of the Data Protection Commissioner.

The company sought to quash the Commissioner's decision regarding an alleged violation of an individual's right to erasure, arguing that they had removed the individual's images from their social media platforms after receiving a complaint, and that the commissioner's decision was thus, malicious.

<aside> ➡️

Link to the original ODPC Ruling

Terrence Adriano vs. Swara Acacia Lodge

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However, the court ultimately struck out the application, stating that the Data Protection Act provides a right of appeal against the Commissioner's decisions, making judicial review inappropriate, given that judicial review is intended to be a route of redress only where no statutory appeal mechanism is available.

The court reasoned that the applicant inappropriately sought judicial review instead of an appeal, which is the procedure expressly provided for in Section 64 of the Data Protection Act. The court emphasised the distinction between an appeal and a judicial review and that one cannot be substituted for the other, especially when the statute specifies which procedure to use. Therefore, the court deemed the application misconceived and an abuse of court process.

Legal Provisions Reviewed

In this legal matter, the court reviewed several legal provisions:

• Order 53 Rule 3(1) and Rule 4 of the Civil Procedure Rules. The applicant stated that their motion was brought under these rules.
• Section 64 of the Data Protection Act. This section provides that a person aggrieved by a decision of the Data Protection Commissioner may appeal to the High Court. The court considered whether the applicant could approach the court by way of judicial review, given this section.

Holding