Data Protection Commission beware: Poachers aren't always the best gamekeepers

The Public Appointment Service's decision to hire a Meta defector creates a lot of pitfalls, argues Cianan Brennan

Newly-appointed Leeds United manager Brian Clough, left, and Liverpool boss Bill Shankly leading their men out for the FA Charity Shield match in 1974. Cianan Brennan suggests Clough’s appointment as a metaphor for the DPC's hiring of former Meta executive Niamh Sweeney. File picture: PA

In 1974, Leeds United, the champions of England’s top tier First Division, and one of the strongest teams in Europe, lost their storied manager of more than a decade Don Revie, lured away by the national team job.

To replace him, the Leeds board went for probably the best young manager in Britain at the time, a man who in the fullness of time would win every honour in the game.

Not at Leeds though. At Leeds, Brian Clough lasted just 44 days, having alienated the entire club long before he arrived, in word and deed, in his role as manager of Derby County, Leeds’ most bitter rivals at the time.

For an alternative view, see Big Tech defector Niamh Sweeney may be a vital asset for Data Protection Commission

His appointment had seemed like madness to all looking in from the outside given everything Clough had said and done in his role as Revie’s erstwhile antagonist-in-chief, and madness it had turned out to be. 

Books have been written and movies made about the folly of it all, though both Leeds and Brian Clough recovered eventually.

Which brings me to the decision by the State to appoint as Ireland’s third data protection commissioner the former head of public policy for both Facebook and Whatsapp’s European sections, a lobbyist-in-chief for Mark Zuckerberg’s social media behemoth Meta.

The Data Protection Commission's offices on Pembroke Row in Dublin. The Irish Council for Civil Liberties has submitted a formal complaint about the appointment of Niamh Sweeney as the DPS's third commissioner. Picture: Leah Farrell/Rolling News 

In this scenario, the Data Protection Commission (DPC) is Leeds, and Niamh Sweeney, who worked for Meta for six years up to 2021, is Cloughie.

How can you compare the two you might ask? It’s true that 1970s English football and social media regulation in the 2020s may seem to have little to do with each other on the face of it. But, in terms of pure optics and politics, the two have a lot in common.

Until roughly three years ago the DPC, under its sole commissioner Helen Dixon, was oft-criticised, particularly in Brussels, for the slow pace with which it had been dealing with the regulation of big tech in general since the advent of the EU’s signature General Data Protection Regulation (GDPR) in 2018.

Two cases it had taken against Facebook (as Meta was then known) had taken the guts of a decade to work their way through the Irish and European courts. 

DPC 'favoured process over action'

The DPC — which, as national regulator in the country where most of American Big Tech had set up European headquarters, stood as the EU’s proxy in most dealings with those companies — was accused of favouring process over action, of fiddling while Rome burned.

Every DPC pronouncement or court ruling against Meta was met with an instant appeal. From 2018 onwards, the regulator was routinely lambasted both by the social media companies themselves and privacy activists like Max Schrems, the Austrian whose cases against Facebook in the early 2010s kickstarted the whole thing.

But then the fines began to be handed down. Once the DPC’s multi-year GDPR investigations began to come to a close, some truly eye-watering penalties were doled out. Meta was no exception. 

To date, it has been slapped with well over €1bn in sanctions by the DPC. The commission, not before time, had begun to show its teeth.

If you had said in 2021 that a lobbyist for Facebook would not just join the DPC, but would be made commissioner, it’s unlikely anyone in Ireland’s small data protection committee would have believed you.

Arguments in favour of appointment

The arguments for the wisdom of the appointment — made by the Public Appointments Service via an interview panel which included a partner at William Fry, who has acted for Big Tech interests in Ireland, according to reporting by Politico — would seem to lean heavily on the idea of poacher turned gamekeeper, that Ms Sweeney will be best suited to regulating the likes of Meta given she is intimately acquainted with how they operate.

'She [Niamh Sweeney] brings no true in-date knowledge of Meta’s algorithms or technical capabilities'. File picture: Tiffany Hagler-Geard/Bloomberg

This argument would hold more water if she had been employed on the technical side of things, I think, rather than the political where her job was literally to further the company’s interests. She brings no true in-date knowledge of Meta’s algorithms or technical capabilities.

Aside from that, the DPC is an independent regulator — strictly speaking, it should have no interest in what social media companies hope to achieve, just in the technicalities of how they go about doing it.

She did however work for many years as a senior lieutenant for Mark Zuckerberg, a man who last year decided that fact-checking — one of the few social goods Facebook ever committed to — wasn’t worth doing in the post-truth era of Donald Trump.

Appointment 'looks awful' 

The appointment just looks awful, and if the DPC should falter in any way — either in fact or perception — in how it regulates Meta over Ms Sweeney’s five-year term, we can expect the political criticism particularly in Europe to hit a crescendo in record time.

There are practical implications also. 

The DPC, by simple virtue of what it does, is trapped in a marriage of antagonism with big tech, given that it represents all that the sector despises — overarching regulation.

Ms Sweeney is a commissioner, not an investigator, but how many decisions will she have to recuse herself from to avoid the perception of a conflict of interests? She may well be terrific at her job, but that isn’t much use if she isn’t allowed to do it.

The DPC isn’t at fault here — it didn’t make the appointment. For years under Ms Dixon the impression one got was that the State may have felt that the regulator had gotten too big for its boots, and not realised that Big Tech needed to be cosied up to, not vilified, in pursuit of the national interest. This appointment would make a deal of sense from that standpoint.

And, barring some improbable scandal, Ms Sweeney will certainly not be leaving her post after 44 days like Brian Clough.

But the pitfalls will still remain. 

This is an appointment which you can expect to be scrutinised very closely. The Government may hope it hasn’t fashioned a rake for itself to stand on for the next half decade.