Data Protected - Ireland

Contributed by Mason Hayes & Curran

Last updated July 2018

General | Data Protection Laws

National Legislation
National Supervisory Authority
Scope of Application
Personal Data
Sensitive Personal Data
Data Protection Officers
Accountability and Privacy Impact Assessments
Rights of Data Subjects
Security
Transfer of Personal Data to Third Countries
Enforcement

ePrivacy | Marketing and cookies

National Legislation
Cookies
Marketing by E-mail
Marketing by Telephone

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General | Data Protection Laws

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National Legislation

General data protection laws

The General Data Protection Regulation (EU) (2016/679)(“GDPR”).

The GDPR is primarily implemented through the Data Protection Act 2018, but the provisions in the Data Protection Acts 1988 and 2003 relating to complaints by individuals or investigations commenced prior to 25 May 2018 also remain in force.

Entry into force

The GDPR applies from 25 May 2018.

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National Supervisory Authority

Details of the competent national supervisory authority

Office of the Data Protection Commissioner
Canal House
Station Road
Portarlington R32 AP23
Co. Laois
Ireland

and

21 Fitzwilliam Square

Dublin 2

D02 RD28

Ireland

 

www.dataprotection.ie

The DPC will represent Ireland on European Data Protection Board.

Notification or registration scheme and timing

There is no obligation to notify regulators of any processing under the GDPR. 

Exemptions to notification

Not applicable.

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Scope of Application

What is the territorial scope of application?

The GDPR applies the processing of personal data in the context of the establishment of a controller or processor in the EU.

It also contains express extra-territorial provisions and will apply to controllers or processors based outside the EU that: (i) offer goods or services to individuals in the EU; or (ii) monitor individuals within the EU. Controllers and processors caught by these provisions will need to appoint a representative in the EU, subject to certain limited exemptions.

Is there a concept of a controller and processor?

Yes. The GDPR contains the concept of a controller, who determines the purpose and means of processing, and a processor, who just processes personal data on behalf of the controller.

Both controllers and processors are subject to the rules in the GDPR, but the obligations placed on processors are more limited. 

Are both manual and electronic records subject to data protection legislation?

Yes. The GDPR applies to both electronic records and structured hard copy records.

Are there any national derogations?

The GDPR does not apply to law enforcement activities which are instead subject to the Law Enforcement Directive. The GDPR also does not apply to areas of law that are outside the scope of Union law, such as national security, and does not apply to purely personal or household activity.

The Data Protection Act 2018 includes certain derogations, such as from specified data subject rights. It also provides broad ministerial powers to restrict organisations’ obligations and individuals’ rights via statutory regulations, in so far as is necessary to safeguard important objectives of general public interest. 

Part V of the Data Protection Act 2018 implements the Law Enforcement Directive, though these provisions are outside the scope of this summary. The Data Protection Acts 1988 and 2003 also contain provisions relevant to national security and the international relations of the State, but, again, these are outside the scope of this summary.

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Personal Data

What is personal data?

Personal data is information relating to an identified or identifiable natural person.

This is a broad term and includes a wide range of information. The GDPR expressly states it includes online identifiers such as IP addresses and cookie identifiers.

Is information about legal entities personal data?

No. However, information about sole traders and partnerships is likely to be personal data.

What are the rules for processing personal data?

All processing of personal data must comply with all six general data quality principles. Personal data must be: (a) processed fairly and lawfully; (b) collected for specific, explicit and legitimate purposes and not processed in a manner incompatible with those purposes; (c) adequate, relevant and not excessive; (d) accurate and, where necessary, up to date; (e) kept in an identifiable form for no longer than necessary; and (f) kept secure.

The processing of personal data must also satisfy at least one condition for processing personal data. These conditions are that the processing is: (a) carried out with the data subject’s consent; (b) necessary for the performance of a contract with the data subject; (c) necessary for compliance with a legal obligation; (d) necessary in order to protect the vital interests of the data subject; (e) necessary for the public interest or in the exercise of official authority; or (f) necessary for the controller’s or recipient’s legitimate interests, except where overridden by the interests of the data subject.

These rules are almost identical to the core requirements for processing personal data in the Data Protection Directive.

Are there any formalities to obtain consent to process personal data?

Obtaining consent will become much harder under the GDPR. 

To be valid, consent must be in clear and plain language and, where sought in writing, separate from other matters. Consent must be based on affirmative action so pre-ticked boxes are not acceptable. Consent might not be valid if: (i) there is any detriment to the data subject for refusing; (ii) there is an imbalance of power; (iii) consent for multiple purposes is bundled together; or (iv) the consent is a condition of entering into a contract. Finally, consent can be withdrawn at any time.

In practice, other processing conditions should be relied on where possible. Consent will only be an appropriate processing condition if the individual has a genuine choice over the matter, for example, whether to be sent marketing materials. 

The Article 29 Working Party has issued Guidelines on Consent (WP259).

Are there any special rules when processing personal data about children?

Consent from a child in relation to online services will only be valid if authorised by a parent. A child is someone under 16 years old, though Member States may reduce this age to 13.

Ireland has left the age of digital consent under the GDPR at 16. 

However, the Data Protection Act 2018 contains other provisions protecting children and, in that context, a child is a person under 18. In particular: (i) there is a specific right to be forgotten for children with respect to personal data collected in relation to the offer to the child of information society services; and (ii) it is an offence for any company or corporate body to process the personal data of a child for the purposes of direct marketing, profiling or micro-targeting. However, this provision has not been commenced and is unlikely to ever be commenced due to perceived issues regarding its compatibility with the GDPR.

The DPC is required to encourage the drawing up of codes of conduct with respect to the application of the GDPR to children’s personal data.

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Sensitive Personal Data

What is sensitive personal data?

Sensitive personal data is personal data consisting of racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, biometric data, data concerning health or data concerning a natural person’s sex life or sexual orientation.

The inclusion of genetic and biometric data is new and an extension to the types of sensitive personal data in the Data Protection Directive.
Information about criminal offences is dealt with separately and is subject to even tighter controls.

Are there additional rules for processing sensitive personal data?

Sensitive personal data may only be processed if a condition for processing sensitive personal data is satisfied. A condition arises where the processing: (a) is carried out with the data subject’s explicit consent; (b) is necessary for a legal obligation in the field of employment law; (c) is necessary to protect the vital interests of the data subject or another person where the data subject is unable to give consent; (d) is carried out by a non-profit-seeking body and relates to members of that body or persons who have regular contact; (e) relates to data made public by the data subject; (f) is necessary for legal claims; (g) is for reasons of substantial public interest under EU or Member State law; (h) is necessary for healthcare reasons; (i) is necessary for public health reasons; or (j) is necessary for archiving, scientific or historical research purposes or statistical purposes and is based on EU or Member State law.

The Data Protection Act 2018 provides that special categories of personal data may be processed in various specific circumstances provided, in most cases, that “suitable and specific measures” are in place to safeguard the fundamental rights and freedoms of the data subject.

These include processing: (i) by elected representatives to perform their functions; (ii) on the basis of a legal obligation on the controller or the data subject in connection with employment or social welfare law; (iii) for the purposes of legal advice, legal proceedings or establishing, exercising or defending legal rights; (iv) in the course of electoral activities by political parties, candidates and holders of public office; (v) for the administration of justice or the performance of a function conferred on a person by enactment or the Constitution; (vi) that is necessary and proportionate for insurance and life assurance policies, pensions or mortgage; (vii) for health or social care purposes; (vii) for public health, including ensuring high standards of quality and safety of health care and of medicinal products and medical devices; and (viii) for archiving, scientific, historical or statistical purposes.

The Data Protection Act 2018 contains a “toolbox” of suitable and specific measures that organisations may employ when processing special categories of personal data. These measures are not mandatory but are examples of safeguarding measures to be implemented.

Provision is also made for the introduction of regulations permitting the processing of special categories of personal data for reasons of substantial public interest.

Are there additional rules for processing information about criminal offences?

It is only possible to process information about criminal convictions or offences if: (a) it is carried out under the control of official authority; or (b) when the processing is authorised by EU or Member State law.

The Data Protection Act 2018 provides that, subject to “suitable and specific measures” being taken to safeguard the fundamental rights and freedoms of the data subject, information about criminal offences may be processed where: (i) the data subject has given explicit consent (unless such processing is prohibited by law); (ii) the processing is necessary and proportionate for the performance of a contract to which the data subject is a party or in order to take steps at the request of the data subject prior to entering into a contract; (iii) the processing is necessary for the purposes of legal advice, legal proceedings or establishing, exercising or defending legal rights; (iv) the processing is necessary to prevent injury or other damage to the data subject or another person or loss in respect of, or damage to, property or otherwise to protect the vital interests of the data subject or another person; or (v) processing is otherwise authorised by the law of the State.

Processing is also permitted under the control of official authorities, including processing required for: (i) the administration of justice; (ii) the exercise of a regulatory, authorising or licensing function or determination of eligibility for benefits or services; (iii) protection of the public against harm arising from dishonesty, malpractice, breaches of ethics or other improper conduct by, or the unfitness or incompetence of, persons who are or were authorised to carry on a profession or other activity; (iv) enforcement actions aimed at preventing, detecting or investigating breaches of the law of the European Union or the law of the State that are subject to civil or administrative sanctions; or (v) archiving in the public interest, scientific or historical research purposes or statistical purposes in certain cases.

Provision is also made for the introduction of regulations permitting the processing of information about criminal offences for reasons of substantial public interest or in certain cases such as to: (i) assess the risk of assess the risk of fraud or prevent fraud; (ii) assess the risk of, or prevent, bribery or corruption; or (iii) ensure network and information systems security, and prevent attacks on and damage to computer and electronic communications systems.

The Data Protection Act 2018 contains a “toolbox” of suitable and specific measures that organisations may employ when processing special categories of personal data. These measures are not mandatory but are examples of safeguarding measures to be implemented.

Information about criminal offences includes, for these purposes, personal data relating to the alleged commission of an offence and any proceedings in relation to such an offence.

Are there any formalities to obtain consent to process sensitive personal data?

Consent to process sensitive personal data must be explicit. The general restrictions on consent, set out above, will also apply. This suggests a degree of formality, such as ticking a box containing the express words “I consent”. It is unlikely explicit consent could be obtained through a course of conduct.

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Data Protection Officers

When must a data protection officer be appointed?

Both controllers and processors must appoint a data protection officer if: (i) they are a public authority; (ii) their core activities consist of regular and systematic monitoring of data subjects on a large scale; or (iii) their core activities consist of processing sensitive personal data on a large scale (including processing information about criminal offences).

There are currently no additional circumstances where a data protection officer must be appointed (except with respect to ‘competent authorities’ under the implementation of the Law Enforcement Directive), though provision is made to introduce regulations requiring appointment in additional cases in the future.

The designation of a DPO in cases where it is not mandatory, will be taken into account as “suitable and specific measure” to safeguard the fundamental rights and freedoms of data subjects in processing their personal data.

What are the duties of the data protection officer?

The data protection officer must be involved in all data protection issues and cannot be dismissed or penalised for performing their role. The data protection officer must report directly to the highest level of management. 

The Article 29 Working Party has issued Guidelines on Data Protection Officers (WP243).

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Accountability and Privacy Impact Assessments

Is there a general accountability obligation?

The GDPR adds a new general accountability obligation under which you must not only comply with these new rules, but also be able to demonstrate you comply with them. This means ensuring suitable policies are in place supported by audit and training.

Are privacy impact assessments mandatory?

A privacy impact assessment must be conducted where “high risk” processing is carried out. This includes: (a) systematic and extensive profiling that produces legal effects or significantly affects individuals; (b) processing sensitive personal data on a large scale; and (c) systematic monitoring of a publicly accessible area on a large scale (e.g. CCTV).

The Article 29 Working Party has subsequently issued Guidelines on Data Protection Impact Assessments (WP 248). It suggests there are nine criteria to consider to determine whether to conduct a privacy impact assessment, and that an assessment should be made if two or more of those criteria are met. This is arguably wider than the criteria set out in the paragraph above. 

In Ireland, the DPC, as with other European supervisory authorities, has the power under the GDPR to draw up a list of processing operations which are or are not subject to the requirement for a data protection impact assessment. It has not done so at this point.

However, the DPC opened a public consultation to come up with a list of high-risk processing activities which require data protection impact assessments. The DPC is proposing that a data protection impact assessment is required in a range of situations. Examples include profiling vulnerable persons (including children) to target marketing, processing biometric data to identify an individual and processing genetic data.

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Rights of Data Subjects

Privacy notices

A controller must provide data subjects with a privacy notice setting out how the individual’s personal data will be processed. The privacy notice must contain the enhanced transparency information.

The Article 29 Working Party has issued Guidelines on Transparency (WP260).

In Ireland, there is no express obligation to provide this information in English, though it may be difficult to show that the information has been fairly provided if it is not in a language that the data subject is familiar with.

Rights to access information

Data subjects will have a right to access copies of their personal data by making a written request to the controller. The initial request is free, though a charge can be made for subsequent requests. Controllers can refuse the request if it is manifestly unfounded or excessive. The response must be provided within a month, though this can be extended by two months if the request is complex. 

The Data Protection Act 2018 includes a number of exceptions to the right of access

Rights to data portability

Data subjects will also have a right to data portability where the condition for processing personal data is consent or the performance of a contract. It entitles individuals to obtain any personal data they have “provided” to the controller in a machine-readable format. Individuals can also ask for the data to be transferred directly from one controller to another. There is no right to charge fees for this service.

The Article 29 Working Party has issued Guidelines on data portability (WP242).

Right to be forgotten

A data subject can ask that their data be deleted in certain circumstances. However, those circumstances are relatively limited, for example where the processing is based on consent, that consent is withdrawn and there are no other grounds for processing. Even where the right does arise, there are range of exemptions, for example where there is a legal obligation to retain the data. 

The Data Protection Act 2018 includes a specific right to be forgotten for children with respect to personal data collected in relation to the offer to the child of information society services.

Objection to direct marketing

A data subject can object to their personal data being processed for direct marketing purposes at any time. This includes profiling to the extent related to direct marketing.

Other rights

The GDPR contains a range of other rights, including a right to have inaccurate data corrected. There is also a right to object to processing being carried out in the performance of a public task or under the legitimate interests condition.

Finally, there are controls on taking decisions based solely on automated decision making that produce legal effects or similarly significantly affects the data subject. The Article 29 Working Party has issued Guidelines on automated decision making and profiling (WP251).

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Security

Security requirements in order to protect personal data

The GDPR contains a general obligation to implement appropriate technical and organisational measures to protect personal data.

In addition, controllers and processors must ensure, where appropriate: (i) the pseudonymisation and encryption of personal data; (ii) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of its information technology systems; (iii) the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; and (iv) a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing. 

Specific rules governing processing by third party agents (processors)

A controller must ensure that any processor it instructs will ensure adequate security for personal data and otherwise meet the requirements of the GDPR.

The controller must have written contracts with its processor containing the enhanced processor clauses.

Notice of breach laws

A personal data breach must be notified to the relevant supervisory authority unless it is unlikely to result in a risk to data subjects. The notification must, where feasible, be made within 72 hours. If the personal data breach is a high risk for data subjects, those data subjects must also be notified.

The Article 29 Working Party has issued Guidelines on Personal Data Breach Notification (WP250).

Specific notice of breach laws apply to the electronic communications sector under the Privacy and Electronic Communications Directive

Controllers in certain sectors may be required to inform sectoral regulators of any breach. For example, financial services firms may be required to inform the Central Bank of Ireland in certain cases.

The DPC has specific forms, and risk rating requirements, for personal data breach notifications. The forms vary depending on whether or not there is cross-border processing involved. In the case of cross-border notifications, it also has supplemental forms which must be completed on request.

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Transfer of Personal Data to Third Countries

Restrictions on transfers to third countries

The GDPR contains a restriction on transborder dataflows. Transfers can take place if it: (i) is to a whitelisted country; (ii) is made pursuant to a set of Model Contracts; (ii) is made pursuant to binding corporate rules; (iv) is made to an importer who has signed up to an approved code or obtained an approved certification; or (v) is otherwise approved by the relevant supervisory authority.

Transfers are also possible if an individual derogation applies. These derogations allow a transfer if it: (i) is made with the data subject’s explicit consent; (ii) is necessary for the performance of a contract with, or in the interests of, the data subject; (iii) is necessary or legally required on important public interest grounds, or for legal claims; (iv) is necessary to protect the vital interests of the data subject; (v) is made from a public register; or (vi) is made under the so-called minor transfer exemption.

The position is broadly the same as under the Data Protection Directive. One notable change is the introduction of the so-called minor transfer exemption, though that exemption will be very hard to rely on in practice.

The European Data Protection Board has issued Guidelines on derogations applicable to international transfers (2/2018).

Notification and approval of national regulator (including notification of use of Model Contracts)

In general, there is no need for prior approval from a supervisory authority. However, this depends on the justification for the transfer. 

For example, there will be no obligation to get approval for the use of Model Contracts (though it is possible some supervisory authorities may want to be notified of their use). In contrast, it will be necessary to get approval to rely on binding corporate rules, and the supervisory authority must be informed of transfers made using the minor transfers exemption.

Use of binding corporate rules

The GDPR places binding corporate rules on a statutory footing. It will be possible to obtain authorisation from one supervisory authority that will cover transfers from anywhere in the EU.

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Enforcement

Fines

The GDPR is intended to make data protection a boardroom issue. It introduces an antitrust-type sanction regime with fines of up to 4% of annual worldwide turnover or €20m, whichever is the greater. These fines apply to breaches of many of the provisions of the GDPR, including failure to comply with the six general data quality principles or carrying out processing without satisfying a condition for processing personal data.

A limited number of breaches fall into a lower tier and so are subject to fines of up to 2% of annual worldwide turnover or €10m, whichever is the greater. Failing to notify a personal data breach or failing to put an adequate contract in place with a processor fall into this lower tier.

The Article 29 Working Party has issued Guidelines on administrative fines (WP253).

Imprisonment

It is an offence for a processor or an employee or agent of the processor to knowingly or recklessly disclose personal data without prior authority of the controller. It is also an offence for a person to obtain, disclose, sell or offer to sell personal data without the authority of the controller or processor. Both of the above offences do not apply if the disclosure was made pursuant to any enactment, rule of law or order of a court. Breach can result in a range of sanctions, including imprisonment for up to five years.  

It is also an offence to: (i) knowingly or recklessly process personal data relating to criminal offences contrary to certain provisions in the Data Protection Act 2018; (ii) fail to comply with investigations by the DPC; and (iii) obstruct or impede the provision of, or provide false or misleading information in connection with, reports required to be submitted to the DPC. 

It is also an offence to process the personal data of a child for the purposes of direct marketing, profiling or micro-targeting. However, this provision has not been commenced and is unlikely to ever be commenced due to perceived issues regarding its compatibility with the GDPR.

Where such a criminal offence is the result of the consent, connivance or neglect of a director, manager, secretary or other officer of the company, that person is also guilty of the offence.

Where a person is convicted of an offence under the Data Protection Act 2018, the court may order any personal data that appears to the court to be connected with the commission of the offence to be destroyed or erased.

Where a person is convicted of an offence under the Data Protection Act 2018, the court may order the person to pay the costs and expenses incurred by the DPC in relation to the investigation, detection and prosecution of the offence.

 

Compensation

Data subjects have a right to compensation in respect of material and non-material damage.

Other powers

Regulators will have a range of other powers and sanctions at their disposal. This includes investigative powers, such as the ability to demand information from controllers and processors, and to carry out audits. They will also have corrective powers enabling them to issue warnings or reprimands, to enforce an individual’s rights and to issue a temporary or permanent ban on processing. 

Practice

In Ireland, there is no current enforcement practice in relation to the GDPR. However, the enforcement of the current law is instructive.

In 2016, the DPC opened 1,479 complaints for investigation. This compares with 932 complaints filed in 2015. While the majority of complaints were amicably resolved, a record number of formal decisions were issued.  

Complaints concerning access rights accounted for 56% of the overall total.

The Special Investigations Unit had its first full year of operation in 2016 and there were two successful prosecutions. 

Most complaints were resolved informally without the DPC being required to make a formal decision under the DPA.

The DPC frequently issues guidance notes which seek to confer clarity on a number of different data protection issues. The guidance notes are available at www.dataprotection.ie.

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ePrivacy | Marketing and cookies

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National Legislation

ePrivacy laws

The European Communities (Electronic Communications Networks and Services) (Privacy and Electronic Communications) Regulations 2011 (the “2011 Regulations”) implemented Article 13 of the Privacy and Electronic Communications Directive. These regulations came into effect on 1 July 2011. One can be indicted under the 2011 Regulations for sending unsolicited electronic direct marketing communications. The penalty for a body corporate on conviction on indictment can be up to EUR 250,000. Where the person tried on indictment is a natural person, the fine imposed may not exceed EUR 50,000.

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Cookies

Conditions for use of cookies

Consent is needed for the use of cookies unless the cookie is strictly necessary for the provision of a service to that subscriber or user. The 2011 Regulations expressly refer to the use of browser settings as a means to obtain consent. There is no express requirement for consent to be “prior” to the use of a cookie, though the legislation probably requires this.

Regulatory guidance on the use of cookies

The DPC has provided regulatory guidance on the use of cookies which was updated in December 2013 and contains guidance on ways to obtain express and implied consent to their use. However, it is probable that consent must now meet the standard under the GDPR.

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Marketing by E-mail

Conditions for direct marketing by e-mail to individual subscribers

The prior consent of subscribers is required before marketing to those individuals by e-mail.

Conditions for direct marketing by e-mail to corporate subscribers

The sending of unsolicited e-mail to corporate subscribers that are not customers for the purpose of direct marketing is permitted unless the subscriber has informed the sender that it does not consent to the receipt of such messages.

Exemptions and other issues

It is permitted to use a customer’s e-mail contact details if the similar products and services exemption applies. The 2011 Regulations also prohibit direct marketing e-mails from being sent if: (i) the identity of the sender is disguised or concealed; or (ii) an opt-out address is not provided.

The sender must also include the eCommerce information.

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Marketing by Telephone

Conditions for direct marketing by telephone to individual subscribers (excludes automated calls)

Direct marketing calls to landline telephones may be made to an individual subscriber provided the subscriber has not previously objected to receiving such calls or noted his preference not to receive direct marketing calls in the National Directory Database.

Direct marketing calls to a mobile telephone may only be made where the subscriber: (i) has consented to the receipt of such calls on his or her mobile telephone; or (ii) has consented generally to marketing calls and that such consent is recorded in the National Directory Database in respect of his or her mobile telephone number.

Conditions for direct marketing by telephone to corporate subscribers (excludes automated calls)

Direct marketing calls may be made to a corporate subscriber provided the corporate subscriber has not previously objected to receiving such calls. It is not permitted to make direct marketing calls to a corporate subscriber if that corporate subscriber has noted a preference not to receive direct marketing calls in the National Directory Database.

Exemptions and other issues

No exemptions apply.

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