Orla Lynskey

Orla LynskeyEmail: O.Lynskey@lse.ac.uk
Administrative support: Lucy Wright
Room: New Academic Building 6.23
Tel. 020-7955-7726

Orla lectures on the undergraduate courses in IT Law and Competition Law and the LLM Digital Rights and Cyberlaw modules having joined the LSE Law Department full-time in 2012. She holds a doctorate in European Data Protection Law from the University of Cambridge having previously read law at Trinity College, Dublin (LLB Law and French) and at the College of Europe, Bruges.

During her doctoral studies, Orla was a Guest Teacher in Competition Law at the LSE and a college supervisor in EU law at the University of Cambridge. Prior to this, Orla spent five years in Belgium working as a teaching assistant at the College of Europe, a contract agent for the European Commission’s Competition Directorate and working on the Antitrust team of a major US law firm. She was also been called to the Bar of England and Wales in 2008.

Research Interests

Orla’s primary field of interest is data protection law. Her thesis examines the regulatory regime for data protection in the EU and identifies its costs and objectives. More generally, Orla is interested in how rights are protected in the online environment and in many aspects of EU law, including competition law, internal market law and fundamental rights protection in the EU legal order.

Selected articles
and chapters in books

'The Data Retention Directive is incompatible with the rights to privacy and data protection and is invalid in its entirety: Digital Rights Ireland' C.M.L. Rev. 2014, 51(6), pp.1789-1811.

'Deconstructing data protection: the "added-value" of a right to data protection in the EU legal order' International and Comparative Law Quarterly (2014) 63 (3) pp.569-597

Article 8 of the EU Charter of Fundamental Rights sets out a right to data protection which sits alongside, and in addition to, the established right to privacy in the Charter. The Charter's inclusion of an independent right to data protection differentiates it from other international human rights documents which treat data protection as a subset of the right to privacy. Its introduction and its relationship with the established right to privacy merit an explanation. This paper explores the relationship between the rights to data protection and privacy. It demonstrates that, to date, the Court of Justice of the European Union (CJEU) has consistently conflated the two rights. However, based on a comparison between the scope of the two rights as well as the protection they offer to individuals whose personal data are processed, it claims that the two rights are distinct. It argues that the right to data protection provides individuals with more rights over more types of data than the right to privacy. It suggests that the enhanced control over personal data provided by the right to data protection serves two purposes: first, it proactively promotes individual personality rights which are threatened by personal data processing and, second, it reduces the power and information asymmetries between individuals and those who process their data. For these reasons, this paper suggests that there ought to be explicit judicial recognition of the distinction between the two rights.

'From Market-Making Tool to Fundamental Right: the Role of the Court of Justice in Data Protection's Identity Crisis', chapter in Serge Gutwirth et al (eds) European Data Protection: Coming of Age (Springer 2013) pp.59-84

The European Data Protection Directive pursues dual, and potentially conflicting, objectives; it aims to facilitate the establishment of the internal market be enabling the free flow of personal data and to protects fundamental rights. This paper will examine the peculiar relationship between these dual objectives. Its aim is twofold. Firstly, to demonstrate that the ambiguity regarding the relationship between the Directive’s dual objectives could lead to doubts concerning its validity. Secondly, to demonstrate, by reference to the case law of the Court of Justice, that the Directive’s market-making characteristics have played second fiddle to its fundamental rights dimension in recent years; the Court has loosened the Directive’s links to the internal market while placing increasing emphasis on the fundamental rights vocation of data protection. One common theme emerges from the paper; the aims of European Data Protection policy are unclear and as such it is bound to suffer an 'identity crisis'.

'Track[ing] Changes: An Examination of EU Regulation of Online Behavioural Advertising through a Data Protection Lens' 2011(36) 6 European Law Review 874-886 

This article examines the proportionality, from a data protection perspective, of the regulatory regime applicable in the European Union to online behavioural advertising in light of recent amendments to the E-Privacy Directive. In this regard, first, the concept of behavioural advertising is explained. Secondly, the relevant legal framework is set out; particular attention is paid to the changes to the E-Privacy Directive that now mandate a user “opt-in” for targeted advertising. Thirdly, the harms to which behavioural advertising may give rise are outlined in order to facilitate the analysis of whether the recent changes constitute a proportionate response to these harms. It will be demonstrated that the European Union's protective regime will come at a cost for internet users; however, it is in keeping with the now prominent position of the right to data protection in the European legal order.

'The extent to which the EC legislature takes into account WTO obligations - jousting lessons from the European Parliament' (co-authored by Jacques Bourgeois), chapter in Dashwood and Maresceau (eds.) Law and Practice of EU External Relations (Cambridge University Press, 2008)

'The ever-longer arm of EC law: the extension of Community competence into the field of criminal law' 2008 (45)1 Common Market Law Review 131-158 (co-authored by A. Dawes)

The physical and legal borders of the European Community have been subject to a large number of changes in recent years. Throughout this period of transition Member States have sought to ensure that certain parameters remain unchanged. One such example is the province of Member States to determine which behaviour to punish by way of criminal sanctions. However, the recent judgments of the (ECJ) in the Cases C-176/03 and C-440/05 have changed these parameters by confirming that the European Community may provide for the imposition of criminal sanctions in certain policies. This article outlines these judgments and examines their impact, addressing a number of questions they left open. It also seeks to highlight the challenges the Community legislature will face should it seek to integrate criminal sanctions into EC legislation. While the shortfalls of the 'double text' situation cannot be denied, these flaws result from a deliberate decision by the Member States to attribute criminal competence to the EU under the Third Pillar, rather than to the EC under the First Pillar. It is thus unfortunate that such a consideration was not given greater weight by either the ECJ in its judgments, or the Commission in its extensive interpretation of the Court's judgment in Case C-176/03.

'The application of Article 86(2) EC to measures which do not fulfil the Altmark criteria; institutionalising incoherence in the legal framework governing state compensation of public service obligations' 2007 30(1) World Competition 153-168

 Whether or not state compensation for the performance of public service obligations constitutes aid is a question to which consistent answers have not been forthcoming.  In its Altmark Trans judgment the Court made an attempt to definitely settle this issue when it held that state compensation for the undertaking of public service obligations does not confer an advantage on undertakings if the four criteria set out in that judgment are fulfilled. However, this conditional answer provided by the Court to this question opened a different can of worms. The Altmark criteria overlap with those found in Article 86(2) EC begging the question; did Altmark incorporate the Article 86(2) EC derogation into the Article 87(1) EC concept of advantage? The Commission's position is clearly set out in its Monti package; it considers that the exception may be applied after the Altmark criteria. By permitting the application of the same legal criteria twice, the Commission runs the risk of applying these criteria in an inconsistent manner. This article sets out to examine the ramifications the Altmark judgment has had on the legal certainty of the Community's state aid regime. In this regard, particular emphasis will be put on the Commission's recent ''Monti package'' to examine whether it has cleared up any remaining confusion post-Altmark.This article has been shortlisted for the 2nd World Competition Young Writer's Award.

'Giving with one hand and taking away with another: A critical analysis of the Asylum Procedures Directive', Focus article, European Current Law, August 2006

'Complementing and completing the Common European Asylum System: a legal analysis of the emerging extraterritorial elements of EU refugee protection policy' (2006) 31(2) European Law Review 230-250