cearta.ie – the Irish for rights

Subrogation – and liens, charges, and other securities – after Promontoria (Oyster) DAC v Kean [2023] IECA 181 (17 July 2023)

22 July, 202324 July, 2023

The regular reader (thank you!) of this blog will know that I like to add an image at the start of most posts. Sometimes, it takes a while to find something appropriate. When searching for a suitable image for Promontoria (Oyster) DAC v Kean [2023] IECA 181 (17 July 2023), I was reminded that oysters and a pint or two of guinness are a perfect combination. Hence today’s image. As to the case that inspired it, in Promontoria (Oyster) DAC v Kean (noted here), [Kean], Pilkington J in the Court of Appeal, (Costello and Butler JJ concurring), held that the abolition of the creation of security over registered lands by the deposit of a land certificate did not abolish other forms of equitable security.

The time-honoured practice by which security over registered lands could be created by the deposit of a land certificate had been given statutory recognition by section 81 of the Local Registration of Title (Ireland) Act, 1891 and section 105 of the Registration of Title Act, 1964 (also here). However, section 73 of the Registration of Deeds and Title Act 2006 (also here) abolished this practice with effect from 31 December 2009. Any lien by means of holding a land certificate ceased to exist after that date (Promontoria (Oyster) DAC v Hannon [2020] 1 IR 364, [2019] IESC 49 (04 June 2019) confirmed the end of the lien), unless – pursuant to the transitional provision in section 73(3) of the 2006 Act – it was registered as a burden pursuant to section 69 of the 1964 Act (also here).…

Of stalking horses and dogs that did not bark: 303 Creative LLC v Elenis, standards of review, commercial speech, and the end of the beginning of the modern First Amendment

4 July, 202311 July, 2023

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| 1A

The opinion of Gorsuch J for the US Supreme Court in 303 Creative LLC v Elenis 600 US __ (2023) (Opinion (pdf) | Justia) has been widely welcomed on the US political right as a victory religious rights and just as broadly deplored on the US political left as a defeat for LGBTQ+ rights. Many on both sides agree, however, that – either way – it is an important defence of free speech. I am sorry to say that it is nothing of the sort. It is a stalking horse for an approach that will have pernicious consequences for the First Amendment.

Gorsuch J for the Court (Roberts CJ, and Thomas, Alito, Kavanaugh and Barrett JJ concurring) held that the First Amendment prohibits Colorado from forcing the appellant, a designer who intended to produce customized and tailored wedding websites, to create expressive designs conveying messages with which she disagrees, such as for for same-sex marriage. He began his analysis with a paean to the First Amendment, drawn from a century of Supreme Court authority (citations omitted):

The framers designed the Free Speech Clause of the First Amendment to protect the “freedom to think as you will and to speak as you think.”

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The settlement in Carey v Independent News & Media and the status of Bloomberg v ZXC in Ireland

30 June, 20231 July, 2023

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| Privacy, Privacy

After a long and distinguished career as a popular public servant, first as a councillor, then then as a TD, and finally as a Minister, Pat Carey (pictured left) is now a public affairs consultant. On 11 and 12 November 2015, the Irish Independent reported that a Garda investigation was under way into allegations of child sexual abuse against an un-named former Minister. He claimed that he was identifiable as the person concerned, and he felt he had no choice but to issue a statement denying the allegations. He was never arrested; and, after the Garda investigation had concluded, the Director of Public Prosecutions in 2019 informed him that no charges would be brought against him. Meanwhile, he commenced proceedings against various defendants, including the Garda Commissioner and the Irish Independent, for damages for invasion of privacy. When the case settled in Mr Carey’s favour earlier this month, there was much sympathetic coverage:

Former minister Pat Carey receives apology from Garda Commissioner and damages over newspaper articles (Irish Times, 16 June 2023)
Former minister Pat Carey to receive ‘substantial damages’ over Garda leak (Irish Independent, 16 June 2023)
Gardaí apologise to Pat Carey over leaks from 2015 investigation into unfounded allegations (TheJournal.ie,

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Recent developments with traffic data retention – variously updated

27 June, 20232 July, 2023

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| Data Protection, data retention, ECJ

In my post on the Communications (Retention of Data) (Amendment) Act 2022: ignore the warnings, legislate in haste, repent at leisure, I sketched how the Government came to enact Communications (Retention of Data) (Amendment) Act 2022 (also here) last Summer.

Since then, there have been several developments.

First, the 2022 Act was intended to buy the government some time to complete a thorough overhaul of the Communications (Retention of Data) Act 2011 (also here). A Bill to that effect has been listed in every Legislation Programme since 2018. So, it is unsurprising that, on 19 April 2023, a Communications (Data, Retention and Disclosure) Bill, to consolidate and replace the 2011 Act, was listed in the Government’s Legislation Programme for the Summer Session 2023 (pdf). However, not only is that Bill not listed as a priority, but we are told simply that the Heads are still “in preparation” (p21).

Still? Still?? Since 2018??? (Indeed, even 2018 was slow, because the underlying Directive was struck down by the CJEU in 2014). Give me a break. Better still, give us all a break by publishing the Bill already!

Second, earlier this month, on 6 June 2023, Minister McEntee signed the Communications (Retention of Data) (Amendment) Act 2022 (Commencement) Order 2023 (SI No 287 of 2023) (also here) to bring most of the Act into effect on 26 June 2023.…

Cúigiú lá breithe shona don RGCS

25 May, 2023

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| Data Protection

Lá breithe shona duit,
Lá breithe shona duit,
Lá breitha shona don RGCS,
Lá breithe shona duit!
…

The Communications (Retention of Data) (Amendment) Act 2022: ignore the warnings, legislate in haste, repent at leisure – variously updated

7 March, 202327 June, 2023

| 1 Comment

| Data Protection, data retention, ECJ

The headline in the Irish Examiner is stark: “European Commission says Ireland’s new data law may be ‘inapplicable’.” Cianan Brennan reports that the European Commission “has dismissed Ireland’s new controversial data retention law as possibly ‘inapplicable and unenforceable’, as it was not submitted to the Commission before its enactment”. The legislation in question is the Communications (Retention of Data) (Amendment) Act 2022 (also here); and it was, as Brennan says, rushed through the Oireachtas last summer with minimal scrutiny.

It is worth pausing for a moment to see where the Act came from, and to consider why it was so rushed. The Department of Justice repeatedly failed to take the right path, even as it has had plenty of opportunity to do so. When it finally did something, it acted hastily; and it now seems that the hasty solution hasn’t worked.

The legal story starts on 27 March 2015, when Graham Dwyer was convicted of murdering Elaine O’Hara in 2012. Much of the evidence had been gathered pursuant to Section 6(1) of the Communications (Retention of Data) Act 2011 (also here), which provides:

A member of the Garda Síochána not below the rank of chief superintendent may request a service provider to disclose to that member data retained by the service provider in accordance with section 3 where that member is satisfied that the data are required for—

(a) the prevention, detection, investigation or prosecution of a serious offence, …

That Act had been introduced to implement the Data Retention Directive (Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC (OJ 2006 L 105, 13.4.2006, p.…

Another heckler’s veto in Trinity

3 March, 20233 March, 2023

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| Freedom of Expression, Freedom of Expression, Universities, Universities

The following story caught my eye in this morning’s Irish Times [with added links]:

Talk by controversial UK preacher at Trinity College cancelled over security fears

By Colin Gleeson
A talk by a UK preacher at an event at Trinity College Dublin on Friday has been cancelled due to security fears.

Mohammed Hijab had been due to speak at an event organised by the college’s Muslim Students Association on the topic of “hedonism”. … Mr Hijab’s invitation to speak on the college’s campus was criticised by students who said they planned to stage a protest should the event go ahead. … It is understood the group made a request to college authorities for security support but was turned down due to a lack of adequate notice. …

In a statement to Trinity News, one of the student newspapers in College, MSA President Hasan Ali said:

While we acknowledge that this decision may disappoint some members of our community, we believe it is the best course of action to ensure the safety and well-being of all.

This is a real pity. As I said when a Galway student society cancelled a controversial appearance for similar reasons (and here‘s another example), this is a failure on the part of TCD’s Muslim Students Association (TCD MSA) to protect the process of freedom of speech.…

The next steps in defamation reform, including the development of an anti-SLAPP mechanism, limp slowly closer – updated

23 February, 20232 March, 2023

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| Defamation, Defamation, Defamation Act 2009

The written answer to two Parliamentary Questions earlier this week (on Tuesday 21 February 2023) provides hope for imminent publication of the long awaited the General Scheme of a Defamation (Amendment) Bill, including the introduction of an anti-SLAPP mechanism.

Deputy Catherine Murphy TD (pictured above left) asked the Minister for Justice if his Department has been engaging with the European Parliament in relation to the proposed directive on Strategic Lawsuits against Public Participation; and to detail what anti-SLAPP mechanisms his Department is considering for domestic legislation.

Deputy Patrick Costello TD (pictured above centre) asked the Minister for Justice the status of the proposed introduction of an anti-SLAPP mechanism in Irish law (details supplied), as committed to in May 2022; and if he will make a statement on the matter.

Minister for Justice Simon Harris TD (pictured above right) took both questions together and replied (links, and emphasis, added):

On 1st March 2022, the Government approved publication of the Report of the Review of the Defamation Act 2009 and the development of a General Scheme of a Defamation (Amendment) Bill on foot of the Report.

As the Deputy has noted, a key recommendation in the Report is to introduce a new ‘anti-SLAPP’ mechanism – referring to Strategic Lawsuits against Public Participation – to allow a person to apply to court for summary dismissal of proceedings that he/she believes are a SLAPP.

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