cearta.ie – the Irish for rights

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

7 March, 202310 March, 2023

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; 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

| 1 Comment

| 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

| No Comments

| 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.

…

Winter is coming: the future of First Amendment analysis, and the prospects for New York Times v Sullivan, after NYSR&PA v Bruen

25 October, 20226 March, 2023

| No Comments

| 1A, Defamation, Defamation, Freedom of Expression, Freedom of Expression, US Supreme Court

Cold winds now blow in the US Supreme Court around the stability of a century’s worth of First Amendment doctrine; even New York Times Co v Sullivan 376 US 254 (1964), the most stable of that Court’s speech precedents, now seems in danger of being blown away in the storm, thanks to the recent decision in New York State Rifle and Pistol Association v Bruen 597 US __ (2022) (Opinion pdf | Cornell | Justia | SCOTUSblog). In an earlier post on this blog, I considered the potential impact on the First Amendment of Thomas J’s originalist reasoning in the Second Amendment case of New York State Rifle and Pistol Association v Bruen, and found some distinctly chilly zephyrs. Thomas J for the majority (Roberts CJ, and Alito, Gorsuch, Kavanaugh, and Barrett JJ concurring) held that a restriction on carrying arms in public for self-defense reasons was inconsistent with the Nation’s historical tradition of firearms regulation and was thus unconstitutional. Thomas J explicitly eschewed any standard of review such as strict or intermediate scrutiny, and it was with this that the minority (Breyer J; Sotomayor and Kagan JJ concurring) took most issue. This is nuts. Worse, in Bruen, Thomas J asserted some similarities in analysis between the Second Amendment and the First.…

Couple mistakenly paid Aus$10.5m by Crypto.com claim they thought they had won a contest

11 October, 2022

| 3 Comments

| Mistaken payments, Restitution

A little while ago on this blog, I noted the mistaken payment case of Foris GFS Australia Pty Ltd v Manivel [2022] VSC 482 (26 August 2022). It has been a recurring theme of my notes on these kinds of cases that the recipients of mistaken payments not only must make restitution of those payments, but also that they run the risk of criminal prosecution. Now comes the unsurprising news that the key recipients of the money at issue in Foris v Manivel have indeed been charged with theft:

Couple mistakenly given $10.5m from Crypto.com thought they had won contest, court hears

Money from crypto exchange was allegedly used to buy four houses worth $4m, vehicles, art and furniture, police officer tells court

A Victorian woman accused of theft over a $10.5m mistaken cryptocurrency refund has been released on bail as she awaits trial, despite claims she allegedly tried to flee the country. Thevamanogari Manivel and her partner, Jatinder Singh, appeared by video link from prison in Melbourne magistrates court on Tuesday when they were committed to stand trial on theft and other charges. …

The Crypto.com account was in Singh’s name but the transfer may have been sent to Manivel’s account as he used her bank card to buy cryptocurrency, the court heard.

…

Blooming Lawyers: from Sadgrove v Hole, via Palles CB and Ulysses, to Facebook

10 October, 202210 October, 2022

| 2 Comments

| Christopher Palles, Defamation, Defamation, Defamation Act 2009, James Joyce

Palles and Joyce (images via Wikipedia, edited) I was reminded (plug alert) of my piece “The Aeolus Episode in Ulysses and the Freeman’s Journal: Chief Baron Palles and the law of defamation”, chapter 12 in Oonagh B Breen & Noel McGrath (eds) Palles. The Legal Legacy of the last Lord Chief Baron (Four Courts Press, 2022) (noted here), when I had the pleasure of reading the recent re-publication of Brian McMahon’s article (first published: Law Society Gazette, October 2004, 12), focusing on Dublin’s legal fraternity in Ulysses by James Joyce (pictured left, on the right).

To celebrate the 100th anniversary this year of the publication of Ulysses by Syliva Beach in Paris, this month’s Law Society Gazette (October 2022 (pdf), 41) has reproduced McMahon’s excellent and entertaining article.

Here are some extracts from it about three minor elements of the book that raise interesting issues of a legal nature:

James Joyce’s Ulysses is set in Dublin on 16 June 1904, and its two principal characters are Leopold Bloom and Stephen Dedalus. Bloom is the novel’s hero, and his journey around Dublin echoes Odysseus’ journey in Homer’s Odyssey. …

… Martin Cunningham tells … Bloom, how Reuben J’s son tried to commit suicide by jumping into the Liffey, but was saved by a workman who was rewarded with a florin.

…

Women in plain sight in the law: Síofra O’Leary, Catherine McGuinness, Frances Kyle & Averil Deverell

19 September, 202229 September, 2022

| No Comments

| judges

Síofra O’Leary (pictured right) has been elected President of the European Court of Human Rights (press release), and will take up office on 1 November 2022. She has been a judge of the Court since 2 July 2015, a President of a Section since 1 January 2020, and Vice-President of the Court since 2 January 2022. She will be the first female President of the Court. Congratulations, Judge O’Leary!

On this blog, I’ve already noted female-majority panels in the Irish Supreme Court. Since then – and as well as from Judge O’Leary’s elevation – there have been three interesting similar developments.

First, the Court of Appeal has made history as the first court in the Republic to have a majority of female judges: it now has has nine women and eight men. [Update (29 September 2023)]: The appointment of Jayne Jagot as a Justice of the High Court of Australia; and, like the Court of Appeal, it means that a majority of the justices of the High Court of Australia will be women [End update]. More generally, women comprise 42 per cent of the Irish judiciary.

Second, a portrait by Miseon Lee, of former Supreme Court judge Catherine McGuinness, has been unveiled at the National Gallery of Ireland.…

Restitution of mistaken payments, again: Chase quickly recovers $50billion; while Citibank eventually recovers (a mere) $500million, defeating defences of “discharge for value”

13 September, 202227 September, 2022

| No Comments

| Mistaken payments, Restitution, Restitution, Subrogation

In my previous post, I looked at Foris GFS Australia Pty Ltd v Manivel [2022] VSC 482 (26 August 2022), in which cryptocurrency trading platform Crypto.com accidentally transferred Aus$10.5m [€7.35m; US$7m; St£6.3m] to an Australian customer when processing an Aus$100 [€70; US$67; St£60] refund, by mistakenly entering her account number into the “payment amount” field. Elliott J held that part of the proceeds could be traced into a property gifted by the customer to her sister, who held the property on trust for the payor.

In this post, I want to look at two other computer-enhanced mistakes. The first is almost unbelievable:

Dad becomes 25th richest man in world after €45 billion lands in account after bank error

A family were made multi billionaires when a banking mishap saw [US$50 billion] €45 billion deposited into one lucky dad’s account, momentarily making him the 25th richest man in the world. … [He] was alerted to the huge sum by his staggered wife, …

The dad-of-two, from Louisiana in the US, … admitted to what had happened and arranged for the money to go back to its rightful owner. … When he alerted [his bank] Chase, they immediately began work to get the funds back, but never said where the money came from, or how the error came about.

…