Cyber Monday and Online Purchases What are your rights?

It is predicted that 42% of Irish Consumers plan to shop the Cyber Monday sales this year, an increase of 10% on 2021, with the most popular purchase to be electronic.  But what happens when you are not happy with your purchase? What are your rights under Irish Law?

Under S.I. 484 / 2013 EU (Consumer Information, Cancellation and Other Rights) Regulations 2003 a consumer can return an item purchased online from any Company based in the EU within 14 days of purchase. This is known as the consumer’s right to a cooling off period and the item can be returned within 14 days from the date of receiving the item, with no explanation required (provided that the item purchased was not personalized for the consumer by the Company).

Regulation 2 of the 2013 Regulations defines a ‘consumer’ as a natural person who is acting for purposes which are outside the person’s trade, business, craft or profession. Conversely, a ‘trader’ is a natural or legal person who is acting for purposes related to their trade, business or profession.

The 2013 Regulations provide that consumers have a ‘cooling-off period’ within which they can decide to cancel the contract. This period is 14 days from the date of conclusion of the contract, save for sales contracts, where the period begins when the consumer receives the goods. Consequently, a consumer must be reimbursed for the money paid if they gave notice to the Company within 14 days to the effect that they would like to cancel the contract. Should the consumer invoke their right of cancellation, they must return the item to the Company within 14 days, unless the Company agrees to collect it. Either way, the Company must reimburse the Consumer for their costs of returning the item (Regulation 20(2)).

If the Company resists any cancellation pursuant to the above regulations, the consumer can seek enforcement by way of District Court Proceedings (via the small claims procedure if less than €5,000) and also issue a complaint to the Competition and Consumer Protection Commission and to the European Consumer Centre.

HSE DATA BREACH – NOVEMBER 2022 UPDATE

 

The recent ransomware attack on the HSE I.T. systems causing Hospitals and G.P practices to shut down some 18 months ago has once again been the highlight of media reports in the last few weeks.  While the focus has been the immediate disruption caused, the potential exposure of sensitive citizens data is now well known.

Data breaches by the HSE are not uncommon.  In February of this year, a new Covid-19 vaccination rollout I.T. system was established and backed by Salesforce CRM and IBM who won a State Tender to provide the service.  However due to 52 data access points within the system, a significant data breach occurred mainly due to employee error.

Furthermore, it was reported recently that warnings were made about “weaknesses” in the Health Service Executive’s computer systems three years ago.  Issues were identified with “security controls” and “disaster recovery protocols” by internal audits which were flagged in HSE annual reports for two years in a row.

The HSE have commenced contacting those affected (approximately 112,000 individuals) with the first 300 being contacted this month.  The HSE have allowed themselves until April 2023 to contact all those affected.

WHAT DOES THIS MEAN FOR THE IRISH PUBLIC?

 

Due to the ransomware attacks and previous data breaches, an enormous amount of sensitive data to include PPS Numbers, date of births and other personal records can be sold online on the Dark Web to the highest bidder who with the use of social engineering can use this information for fraudulent purposes at a significant cost to the victims whose data has been used in this way.   For such victims, the main recourse is to pursue a claim under the GDPR Regulations which are governed in Ireland under the Data Protection Act 2018.

There are two avenues of complaint:

  1. A complaint to the Data Protection Commissioner (DPC)

As the DPC can reach findings about whether there has been a breach, the DPC cannot award compensation but if liability is in question, then the DPC may be able to clarify the matter before proceedings are issued.

  1. A Data Protection Action in either the Circuit Court or High Court under S.117 Data Protection Act 2018.

 

Under GDPR a data controller or a data processor such as the HSE must contact you and inform you that your personal data has been breached.  However due to the recent media coverage it may be disproportionate for the HSE to establish contact.  If you believe your data has been breached, you should contact the HSE directly to clarify whether it has.

 

Prior to the GDPR, the Irish High Court held that only material damage was compensable.  However, Article 82 of the GDPR establishes a right to compensation for a data subject who has suffered either material or non- material damages as a result of the breach.  Such loss has been difficult to quantify but recent persuasive UK Authorities have ruled that compensation can be awarded for loss of control over personal data, even where there was no pecuniary damage or distress.   However, in Ireland, it will be necessary to show such loss from a psychological point of view.  The Irish Courts have repeatedly ruled that upset or distress short of psychiatric injury is not recoverable in tort. Therefore, you would have to make a claim through the Personal Injury Assessment Board for a claim for such injury and to do so within 2 years despite the fact that the GDPR statute allows for 6 years.  It may be the case that any such data used for fraudulent purposes will allow one 6 years to take a case to the Circuit or High Court for material damage.

 

In the last month, the HSE has started to contact the 112,000 individuals affected by this and have allowed themselves until April 2023 to notify those affected.  This is alarming to say the least as personal data can be used to create fake bank account, PPS Numbers and fake identities for numerous criminal activities with a potential personal financial loss for those affected.

 

If you have been affected and have been contacted by the HSE, then do not hesitate to contact us on 021 2390620 or email: anthony.shields@mdmsolicitors.ie and a member of our specialised privacy and data protection experts will be able to advise you.

 

Autism and Paediatric Traumatic Brain Injury

Two cases have now come before the Courts in Ireland where the family of a child with Autism have sued the National Maternity Hospital over the circumstances surrounding the child’s birth.

 

  • Updated Research

 

Over the last 10 years or so scientific evidence has developed and shown that perinatal and intranatal trauma are significant risk factors for developing autism. The first advancement in this regard was a Californian article in 2017 which examined the inter-relationship between birth trauma and the risk of developing autism.

 

Researchers discovered that nearly 40%, of the approximately 6,000 children reviewed, suffered complications either shortly before or during birth. The complications researchers found to be most closely related to autism included birth asphyxia and pre-eclampsia. This research has in turn led to more clinical negligence case investigations.

 

  • Legal cases taken against National Maternity Hospital

 

The first test case in this jurisdiction was that of Finn Phillips v NMH. In June 2019 the case was settled by mediation where Mr. Justice Kevin Cross was happy to endorse a settlement of €7.25 million for a child that developed autism following a traumatic birth.

 

The infant was delivered by ventouse delivery and it was alleged that he was unnecessarily exposed to both asphyxia and trauma from the vacuum extraction. His legal team argued that this led to potential long term consequences. They claimed the injuries suffered included developmental delay and autism. It was claimed that there was a failure to manage the mother’s labour appropriately and an alleged failure to intervene in time.

 

Whilst this case is not a strict precedent as each case will turn on its own facts it is a landmark case in that it related to autism arising from a birth injury and was settled for a very significant sum.

 

Recently a second case against the National Maternity Hospital has been settled  for €10 million, following an eight year battle. Ashton Shiels Flynn, through his mother Michelle, sued the NMH over the circumstances of his birth. The court heard it was only the second case to come before the courts seeking to establish an alleged link between autism and alleged hypoxic event during delivery.

 

  • Causation and Negligence

 

As scientific research progresses causation factors will become definitive and unfortunately it seems probable that there will be a lot more of these type of cases as families investigate causation of autism and developmental delay.

 

Clinical negligence experts in the UK have indicated that the main areas of alleged negligence, and this is by no means an exhaustive list and will continue to be expanded upon, linking autism to birth would be:-

 

    • Pre-eclampsia;
    • Birth management and a failure to intervene in delivery;
    • Instrumentation delivery;
    • Delay in undertaking/undergoing a c-section;

 

  • Next Steps for Families

 

It is important for families who have concerns regarding their child’s birth to take up the relevant medical records and seek expert advice from a team of legal and medical experts to identify any failures or negligence during delivery leading to increased risk of autism.

 

If you would like to arrange a consultation or would like further information please get in touch with Deirdre Rafferty of our office via phone or email deirdre.rafferty@mdmsolicitors.ie

 

Vaginal Mesh Implants

If you have been affected by vaginal mesh implants then you are most likely entitled to compensation.  $8 billion paid out globally to date by manufacturers.

 

Vaginal mesh implants were introduced in the late 1990’s as a routine treatment for stress urinary incontinence and pelvic organ prolapse which are common complications following childbirth. These flexible plastic scaffolds have been used widely across Ireland and the UK for many years but have led to life altering complications for many women including nerve damage, pain, vaginal scarring, organ perforation and several reported deaths.

 

It is now widely accepted that up to 25% of women will suffer the consequences of having vaginal mesh inserted. Unfortunately, many of these complications are not initially obvious and may take several years

to manifest. It is also unfortunate that complications have been reported since 2008, yet Irish doctors continued to insert these long after the first FDA warnings appeared. In addition mesh companies engaged in ‘illegal, false and deceptive business practices’ and ‘put profits ahead of the health of millions of women’.

 

MDM Law is dealing with enquiries on behalf of a number of clients who are suffering from complications following such surgeries.  We provide specialist female advice supporting our clients in relation to this issue and work closely with a fully trained urogynaecologist.

 

Our team of exceptional lawyers have extensive experience and knowledge in dealing with this issue.  We take an empathetic sensitive approach and are proud to represent clients in securing compensation for them.

Should you have any queries in respect of this issue please contact us for confidential advices on 0212390620.

 

 

INCLUSION AND DIVERSITY IN THE WORKPLACE – THE GENDER PAY GAP REVISITED

The Government have introduced the Gender Pay Gap Information Act 2001 on the 13th of July 2021.  This legislation places a reporting obligation on Employers to report and publish information relating to the Gender pay gap and where such a gap is identified, the employer is obligated to explain this and introduce measures to reduce this gap.  This legislation is in line with the proposed EU Commission’s draft Directive on Pay Transparency and aims to increase Senior Management and CEO Commitment to reducing the gender pay gap which currently exists.

 

Employers will also be required to publish a statement setting out, in the employer’s opinion, the reasons for such differences in that employer’s case, and the measures, if any, being taken, or proposed to be taken, by the employer to eliminate or reduce such differences in that employer’s case.

 

WHAT IS THE GENDER PAY GAP? 

The gender pay gap essentially refers to the difference in the average gross hourly wage of men and women. This is not the same as the obligation to pay both genders equal pay for like work, where different pay rates may be justified in some circumstances.  Indeed S.19 of the Employment Equality Act 1998 ensures that every employee is paid the same rate of remuneration for like work.  Therefore, while the principal of equal pay for equal work has been enshrined in Irish law for many years, there has been no such reporting obligations on an Employer in relation to the gender pay gap until the current legislation which amends the Employment Equality Act 1998 by inserting a new Section 20A.

 

The gender pay gap is the difference in average gross hourly pay of women compared with men in a particular organisation, such that it captures whether women or men are represented equally across such an organisation.  This legislation is however more aimed at the pay gap against women as has been more commonly reported.

 

It is envisaged that there may be a central database website put in place for employers to upload reporting information. However, this has yet to be put in place.

 

WHICH ORGANISATIONS ARE IMPACTED BY THIS LEGISLATION?

All organisations both public and private with 50 employees or more will have to comply with the reporting standards as set out by this legislation.  The legislation allows for a gradual approach towards organisations to comply with this legislation.  Initially organisations with 250 or more employees will be required to comply with the reporting standards.  By 2023, organisations with 150 or more employees will be required to comply with the reporting standards and by 2024 organisations with 50 or more employees will be subject to the requirements of this legislation.  Interestingly, smaller organisations with less than 50 employees will not be subject to the requirements.

 

While the Act does impose penalties, an organisation found in breach of the requirements as set out under the Act can cause serious reputational damage.

 

ENFORCEMENT

The legislation sets out two methods for enforcement of an employer’s obligations to report and correct the imbalance in its employees.  Firstly, an employee who feels aggrieved by this imbalance may make a complaint to the Workplace Relations Commission who may order a specified course of action against the employer.  Secondly an employee may notify the Irish Human Rights and Equality Commission who if satisfied with the complaints may apply to the Circuit Court or the High Court for an Order against the Employer or Organisation to comply with the requirements of the 2021 Act.

 

HOW TO COMPLY WITH THE LEGISLATION:

Organisations and employers affected by this will have to undergo a consultation process with all stakeholders across the organisation.  Employers will have to review the technology used particularly in their payroll departments and must also be cognisant of the Data Protection legislation when compiling such data for the purposes of this legislation.  Here at MDM, our employment law department has guided our commercial clients along this process are here to answer any queries you may have in relation to this legislation and any other employment law issues facing your organisation.