cearta.ie – the Irish for rights

In a previous post, I examined the judgment of Roy J in the the Federal Court of Canada in 1395804 Ontario Ltd (Blacklock’s Reporter) v Canada (Attorney General) 2024 FC 829 (CanLII) (31 May 2024) [Blacklock’s Reporter], effectively holding that technological protection measures cannot defeat users seeking to rely on the exceptions provided in the copyright legislation. And I put it in the context of sections 370, 374 and 376 of the Copyright and Related Rights Act, 2000 (hereafter: CRRA), and of section 377 CRRA (as inserted by section 38 of the Copyright and Other Intellectual Property Law Provisions Act 2019.

There have been subsequent relevant developments, in Canada and the US, and I want to look at those developments in this post. In particular, the US development – inevitably – adds the First Amendment to the mix, which in turn raises questions about whether there are similar constitutional issues in Canada and Ireland.

First, Canada. Barry Sookman argues that the case is riddled with mistakes, that many of its findings are open to significant doubt, and that it cries out for appellate review. In reply, Howard Knoff, argues that Sookman’s arguments are against a straw man.…

Section 3 of the Defamation (Amendment) Bill – summary relief, costs, punitive damages, online-only publications, and encouraging all eligible periodicals to join the Press Council

2 September, 20242 September, 2024

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Part 2 of the Defamation (Amendment) Bill 2024 contains section 3, as follows:

PART 2

AMENDMENT OF SECTION 2 OF PRINCIPAL ACT

Amendment of section 2 of Principal Act

3. Section 2 of the Principal Act is amended-

(a) by the insertion of the following definition:

“‘Act of 2015’ means the Legal Services Regulation Act 2015;”,

(b) by the substitution of the following definition for the definition of “periodical”:

“‘periodical’ means—

(a) any newspaper, magazine, journal or other publication that is printed, published or issued, or that circulates, in the State at regular or substantially regular intervals and includes any version thereof published on the internet or by other electronic means, or

(b) any newspaper, magazine, journal or other publication that is published or issued, or that circulates, only on the internet or by other electronic means at regular or substantially regular intervals—

(i) by a publisher who is established in the State, or
(ii) the publication of which is specifically targeted at the general public, or a section of the general public, in the State;”,

and

(c) by the deletion of the definition of “summary relief”.

This section does three things. First, it inserts a reference to the Legal Services Regulation Act 2015 (the 2015 Act) into the Defamation Act 2009.…

Oh no, not again … yet another mistaken offer

27 August, 202430 August, 2024

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| Contract, Mistaken offers

Growing up, I remember a tv programme about technology repeating the aphorism that

To err is human; to really foul things up requires a computer

Like many pithy axions, its first usage is unclear. And I don’t remember the particular tv programme on which I heard it. But it is well illustrated today by the following story:

Airline mistakenly sells hundreds of first-class tickets at heavily reduced prices

Qantas … had flights between Australia and the US displayed on its website on Thursday, but instead of advertising the usual rate for these journeys, an error made the flights appear to be up to 85 per cent less than the usual first-class prices. …

The relevant error is pictured above, left. Though it does not appear on the Quantas news site, a statement by a Qantas spokesperson cited a coding error, and said this was “a case where the fare was actually too good to be true”. If something looks too good to be true, that’s because it usually is. And this is not the first time that an airline’s website has really fouled things up. For example, in 2008, an Irish airline listed transatlantic business-class flights for €5 plus taxes; in 2012, a US airline listed flights to Hong Kong at four air-miles plus taxes and fees, or about $35; and, in 2018, a UK airline listed flights between Dubai and Tel Aviv for £1.…

Sections 1 & 2 of the Defamation (Amendment) Bill 2024 – and background and comparative reading for analysis of the Bill

22 August, 202431 August, 2024

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| Defamation, Defamation, Defamation (Amendment) Bill 2024

The Defamation (Amendment) Bill 2024 begins as follows:

Bill

entitled

An Act to provide that defamation actions in the High Court shall not be tried with a jury; to give effect to Directive (EU) 2024/1069 of the European Parliament and of the Council of 11 April 2024 on protecting persons who engage in public participation from manifestly unfounded claims or abusive court proceedings (‘Strategic lawsuits against public participation’) in so far as it relates to defamation proceedings; for those and other purposes to amend the Defamation Act 2009; and to provide for related matters

Be it enacted by the Oireachtas as follows:

PART 1

PRELIMINARY AND GENERAL

Short title and commencement

1. (1) This Act may be cited as the Defamation (Amendment) Act 2024.

(2) This Act shall come into operation on such day or days as may be appointed by order or orders made by the Minister for Justice, either generally or by reference to any particular purpose or provision, and different days may be so appointed for different purposes or different provisions, including the insertion of section 34C into the Principal Act.

Definition

2. In this Act, “Principal Act” means the Defamation Act 2009.

As the Explanatory Memorandum explains, section 1 is a standard short title and commencement provision, and section 2 defines the “Principal Act” as the Defamation Act 2009 (also here) (the 2009 Act).…

Better late than never – the Defamation (Amendment) Bill 2024 is finally here

2 August, 202412 August, 2024

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| Defamation, Defamation, Defamation (Amendment) Bill 2024, Defamation Act 2009

1. Introduction
The origins of the aphorism “better late than never” may lie in Livy’s History of Rome (c27-9 BCE). Its first recorded use in English seems to be in Chaucer’s Canterbury Tales (c1387-1400); in The Canon’s Yeoman’s Tale, the Yeoman (pictured right, from the Ellesmere Chaucer) says ([1410]-[1411]):

Lest ye lese al; for bet than nevere is late.

Lest you lose all; for late is better than never.

Nevere to thryve were to long a date.

Never to thrive would be too long a time.

No doubt there are scholars of Latin or Middle English in the Department of Justice, as the Defamation (Amendment) Bill 2024, long long in the making, has finally arrived, better late than never, though it is very very late indeed. On 1 January 2010, the Defamation Act 2009 came into effect, modernising Irish defamation law and putting it largely on a statutory footing. Section 5 provided for a review of the Act to commence within five years, and to be completed within a further year. In the first of many pushed deadlines, the review process commenced in November 2016. After extensive consultation, in March 2022, the Department of Justice published a Report of the Review of the Defamation Act 2009 (the Report); in March 2023, the Department published a Draft General Scheme of the Defamation (Amendment) Bill (the Heads); in September 2023, the Joint Oireachtas Committee on Justice published their Report on Pre-Legislative Scrutiny of the General Scheme of the Defamation (Amendment) Bill (pdf) (the PLS); and today, the Defamation (Amendment) Bill 2024 and accompanying Explanatory Memorandum (pdf) have been published on the Oireachtas website.…

DPP v Dwyer – Part 1 – the Supreme Court has unanimously dismissed Graham Dwyer’s appeal against his conviction

31 July, 20243 August, 2024

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| General

1. Introduction
The Supreme Court has dismissed Graham Dwyer’s appeal against his conviction for the murder of childcare worker Elaine O’Hara (BBC | Examiner | Irish Independent | Irish Times | Gazette.ie | RTÉ | Sky | TheJournal.ie). The Court held that evidence of mobile phone traffic and location data was admissible at his trial. Collins J (pictured back right, in the photograph on the left) (O’Donnell CJ; Dunne, Charleton, O’Malley and Donnelly JJ concurring) delivered the judgment of the Court; Hogan J (pictured beside Collins J) concurred in a short judgment. In this post I want to sketch the background to the decision, the decision itself, and some consequences. In a series of forthcoming posts, I will look at all of those issues in more detail.

2. Background
On 27 March 2015, following a lengthy and high-profile trial in the Central Criminal Court before Hunt J and a jury, Dwyer was convicted of the murder of Elaine O’Hara in August 2012. He was subsequently sentenced to imprisonment for life, and he continues to serve that sentence.

Since January 2008, there had been an intense sexual relationship between him and Elaine O’Hara; and, after March 2011, they had communicated with each other by prepaid mobile phones.…

An overpayment into your bank account is not money for nothing; an overactive ATM does not dispense free money

30 July, 202430 July, 2024

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| Mistaken payments, Restitution

Much and all as it is fashionable to complain about Google now, sometimes the algorithm gets it just right. Over the weekend, my feed served me this headline: Man who was accidentally paid 330 times his salary quits and disappears (Unilad, 19 July 2024). Perhaps it is not my usual sort of news source, but it is certainly my usual sort of news – it is another example of mistaken overpayments on which I have regularly commented on this blog. As I have observed in that context, many have often adopted the approach of one of the white mice (who were, in fact, hyper-intelligent pan-dimensional beings) in Douglas Adams‘ The Hitchhiker’s Guide to the Galaxy (1979): when faced with a choice between doing the right thing, “and on the other hand just taking the money and running, then I for one could do with the exercise”.

That is precisely what the overpaid employee did here. A Chilean meat-producer, Consorcio Industrial de Alimentos (Cial), sent a payment of CLP$165,398,851 (€160,283) to him, instead of his usual salary of CLP$500,000 (€485). It is a bizarre amount of overpayment; usually, a payment is made twice, or additional digits are added to a payment; but there is no obvious connection between the amounts of the salary and the overpayment here; it may be that the larger amount was meant for another account, or that somebody just entered a wrong random number.…

Defamation cases should routinely be commenced in the Circuit Court and not the High Court, and the forthcoming Defamation (Amendment) Bill 2024 should be amended accordingly

25 July, 202430 July, 2024

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| Defamation, Defamation, Defamation (Amendment) Bill 2024, Defamation Act 2009

It is widely reported this morning that the Government has approved the publication of the long-awaited, much-delayed, and eagerly-anticipated Defamation (Amendment) Bill 2024 (see, eg, Catherine Sanz, Business Post | Cianan Brennan, Irish Examiner | Shane Phelan, Irish Independent | Brynmor Pattison, Irish Sun | Cormac McQuinn, Irish Times (here and here) | Orla O’Donnell, RTÉ | Steven Fox, TheJournal.ie).

It will deal with issues such as the abolition of juries, the control of strategic litigation against public participation (SLAPPs), live broadcasts, transient retail defamation, support for alternative resolution of defamation disputes, identifiability of anonymous online defamers, the prominence of corrections, and improvement of the defence of reasonable publication. A Government press release explains that

Minister for Justice Helen McEntee TD and Minister of State for Law Reform James Browne TD have received Government approval to publish the Defamation (Amendment) Bill 2024. The full text of the Bill will be published on the website of the Houses of the Oireachtas next week. …

Minister McEntee said:

Our democracy needs defamation laws that meet the challenges of an increasingly complex media landscape. The overarching aim of this Bill is to safeguard freedom of expression, the right to protection of good name and reputation, and the right of access to justice.

…