Can you get out of the purchase of a house, if you find out later that someone had been murdered in it?

Get directions 16 Stillwell Dr, Wakefield WF2 6RL, UKThe question in the title was provoked by Ciara Kenny‘s House Hunter column in today’s Irish Times, where she ask Would you buy a house someone had been murdered in? I don’t think I would. And if I did, I’d be stuck with it, since the answer to the question in the title to this post is that you can’tget out of the purchase of a house, if you find out later that someone had been murdered in it. Ciara’s column is a diary of her travails trying to purchase a house in Dublin in today’s crazy property market (as she put it on twitter: it’s an effing nightmare). From today’s column:

Every old house has its secrets. Last summer, a gorgeous house came up for sale which we spent weeks deliberating over. But we couldn’t shake a bad feeling we had about the surrounding streets. So when bidding climbed above what we were willing to pay, we were relieved for once. … [Later, my partner found] a decade-old RTÉ news report about a man stabbed to death by a burglar on the stairs. … I don’t think I would be able to shake the image of that poor man’s violent death every time I walked upstairs.

If Ciara had bought the house, and later discovered its gruesome past, she would not have been able to reverse the transaction. In Sykes v Taylor-Rose [2004] EWCA Civ 299 (27 February 2004) the defendants purchased 16 Stillwell Drive, Sandal, Wakefield (pictured above left, via Google Streetview) in September 1998. The following March, they received an anonymous note with photocopies of newspaper reports of a trial of a previous owner who had murdered his adopted daughter there in 1985. Their solicitor advised them that the vendor of the property at the time of the 1988 sale had not been under an obligation to disclose the history, and that they would be under no such obligation when they came to sell it. They continued to live there for a further 18 months, and then sold it to the plaintiffs in December 2000. They, in turn, discovered the property’s infamous past from a television programme shown in July 2001. They moved out, and sought damages from the defendants for misrepresentation. The High Court concluded that the respondents were not under a duty to disclose that the murder had taken place at the property, and there was no appeal on that point. As O’Flaherty J said in O’Donnell v Truck and Machinery Sales [1998] 4 IR 191, 202

In general, mere silence will not be held to constitute a misrepresentation. Thus, a person about to enter into a contract is not, in general, under a duty to disclose facts that are known to him but not to the other party.

That was the situation in Sykes v Taylor-Rose, where the defendants were not under any duty to disclose what they knew about the murder to the plaintiffs. In O’Donnell, O’Flaherty J continued that

in certain circumstances, such a party may be under a duty to disclose such facts. A duty of disclosure will arise, for example, where silence would negate or distort a positive representation that has been made, or where material facts come to the notice of the party which falsify a representation previously made.

Here, the defendant agreed to buy eighteen new Vovlo L150 mechanical shovels from the plaintiff, on foot of representations that they were of the highest standard and comparable in every respect to the leading competitor, the Caterpillar 966. The defendant asked that they be fitted with bigger wheels which were standard on the Caterpillar, and the plaintiff complied, but did not warn that the bigger wheels would result in a loss of performance. When the defendant failed to pay, the plaintiff sued for the purchase price, and the defendant counter-claimed for rescission of the contract on the ground inter alia that this failure to warn amounted to a misrepresentation. Moriarty J in the High Court ([1997] 1 ILRM 466) agreed, but the Supreme Court (O’Flaherty, Lynch and Barron JJ) reversed. O’Flaherty J explained that, to succeed in this regard, the plaintiff’s silence

… must actually have distorted the positive representations that he made regarding the comparability of the L150s to the Caterpillars. Clearly, it did not so distort the representation made. The matter of the necessity or not for a warning is something totally divorced from such representation as was made.

In Sykes v Taylor-Rose, the plaintiff purchasers tried a similar argument, and it met with the same fate. During the negotiations for the December 2000 sale, the plaintiffs had asked the defendants “Is there any other information which you think the buyer may have a right to know?”; the defendants had answered “no”; and the plaintiffs alleged that, having regard to the 1985 murders, this answer was a misrepresentation. The High Court concluded that it was not, and the Court of Appeal agreed.

Many US states have laws requiring vendors and their estate agents to disclose past events that might devalue a property, including sometimes whether the house is haunted. But that is not the case in the UK or Ireland. The moral of the story is that vendors of property are under no obligation to disclose the history of the house. Some buyers will be happy to get a lower purchase price because the history depresses the demand, and a few will actually be happy to purchase a house with a grisly history, but for majority of buyers, they must beware.

Standardised tobacco packaging comes ever closer in Ireland

Pantone448C via their websiteThe Irish Independent this morning reports that the first of the plain cigarette packets have hit shelves around the country:

Tobacco products bearing the new standardised packaging are now available in some Irish retail outlets. From September, all cigarettes and all other tobacco products will have to be sold in plain or standardised packaging by law.

The Department of Health have issued a press release in which the Minister of State for Health Promotion and the National Drugs Strategy, Catherine Byrne, welcomed the news that products using the new plain packaging can now be found in some outlets:

Gone are the familiar colours and logos of the various brands and instead all cigarette boxes will be in the same plain neutral colour [pictured above left], bringing into sharp focus the health warnings on the packets. … Our aim is to decrease the appeal of tobacco products, to increase the effectiveness of health warnings and to reduce the chances of consumers being misled about the harmful effects of smoking. This packaging makes it plain that cigarettes are bad for your health. … Standardised packaging is just one of a number of measures outlined in Tobacco Free Ireland (pdf), the ultimate aim of which is to encourage and help smokers to quit and to prevent young people from starting to smoke.

On 10 March 2015, when the President signed the Public Health (Standardised Packaging of Tobacco) Act 2015 (also here) into law, Ireland became the second country in the world — after Australia — to enact legislation requiring standardised tobacco packaging. (more…)

From Mute to Dysaguria

Alexander Skarsgard in MutePictured left is Alexander Skarsgård (imdb | wikipedia) in the new Duncan Jones (imdb | wikipedia | blog) movie Mute (imdb | Netflix).

Skarsgård plays Leo, a mute bartender searching for girlfriend who has inexplicably disappeared in Berlin in 2052. In an interview in last Sunday’s Observer, he takes up the story:

… [Leo’s] search takes him deep into a neon-saturated underworld, populated by gangsters and a pair of anarchic American field surgeons (Paul Rudd and Justin Theroux) … “It’s very dystopian, but not that far-fetched unfortunately, because it’s a society run by corporations,” says Skarsgård. “You subscribe to a corporation and then they will provide everything for you – housing, healthcare, food – but they basically own you. …”. …

So we could be looking at the future then? Skarsgård looks a little traumatised and then sighs: “Hopefully not.”

I’m looking forward to the movie; but I’m not sure I agree that the best adjective to describe it is “dystopian”. It is entirely appropriate when a state goes bad; but it is not a good adjective to describe “a society run by corporations”. In fact, we don’t have a word for when a corporate society goes bad, so I’ve suggested “dysaguria”, as a noun meaning “frightening company”, and “dysagurian” as the adjective to describe that frightening company and the associated society run by frightening companies (see here | here | here). We can’t easily discuss a phenomenon until we have the proper words to describe it:

In his speech on leaving the US Presidency in January 1961, Eisenhower warned against the growing power of the military-industrial complex. In modern surveillance terms, we might term this the security-corporate complex. And we already have a word for when the military/security state goes bad, … That word is “dystopia”.

However, we don’t have a word for when the industrial/corporate society goes bad, … I think it’s beyond time we had one … I suggest that we need a word for “frightening company”, and that we can devise one by following the lead provided by More and Mill [in coining “dystopia” as a counterpoint to “utopia”] provides a guide. … Let’s keep “dys” [meaning “bad”] as the prefix, and look for a suitable word to which to add it. Greek provides “aguris”, which means “crowd” or “group” … Hence, from “dys” meaning “bad”, and “aguris” meaning “crowd” or “group”, I suggest “dysaguria”, as a noun meaning “frightening company”, and “dysagurian” as the adjective…

In my view, therefore, “dysagurian” is the perfect word to describe the society in Mute‘s Berlin in 2052.

Update: Mute did not find favour with Donald Clarke in the Irish Times.

Legal reforms and practical responses are necessary to protect freedom of speech

Sunday Independent front page 12 NovYesterday’s Sunday Independent (front page pictured left) was something of a bumper issue for freedom of speech. The Editorial argued that it’s time to level the media playing field, and called on the Joint Oireachtas Committee on Communications, Climate Action and Environment to take into account the challenges facing all of the media, not just radio and tv stations, in its deliberations on the future of the television licence fee. And there were three other interesting columns in the print edition that were published online last night. Fergal Quinn argued that, with a referendum looming, the media should champion free speech, and we must learn to tolerate open debate. Eilish O’Hanlon argued that no-one should need to beg the Government’s permission to express an unpopular opinion. And Ruth Dudley Edwards praised Conor Cruise O’Brien as a revisionist who cared about truth and as a patriot who kept free speech alive.

Last week, the Long Room Hub in Trinity College Dublin and the Heyman Center for the Humanities in Columbia University, New York co-hosted a series of events in Dublin and New York on the challenges fake news poses to modern society. In yesterday’s Sunday Independent, Breda Heffernan reported on one of the Dublin events that fake news is a dark menace to truth, democracy and discourse.

TLRHubHeadlines
Me, Andrea Martin, Todd Gitlin, Jane Ohlmeyer (Director, Long Room Hub), Fionnán Sheahan (click through for larger image)
The previous night, the Hub had hosted a (slightly controversial) Behind the Headlines event on freedom of speech: Where Journalism and the Law Collide at the Boundary of 21st Century Debate, featuring Fionnán Sheehan (Editor of the Irish Independent), Professor Todd Gitlin (of Columbia Journalism School), Andrea Martin (a media lawyer in practice in Dublin), and myself. Ryan Nugent reported in the Irish Independent the following day that traditional and social media are ‘not on a level defamation playing field’. Our four talks have been podcast on SoundCloud by the Hub; Todd’s talk is here; and, yesterday, the Sunday Independent published Andrea’s and mine. (more…)

Consultation on the Status, Treatment and Use of the National Anthem

Public Consultation Committee Seanad EireannThe Seanad Public Consultation Committee was established “to facilitate direct engagement and consultation between members of the public and Seanad Éireann” (pdf).

It has just undertaken a Consultation on the Status, Treatment and Use of the National Anthem (pdf):

The purpose of this consultation is to invite submissions from interested parties or citizens to consider the most appropriate way the State should treat the National Anthem. This consultation process is being considered in the context of the music and English and Irish lyrics of the National Anthem no longer being in copyright. Legislative proposals have been made to address this issue. Seanad Éireann would like to consult with citizens on their views on this issue.

I have already commented at length on this blog about the issue, so I made a short submission to the Committee in which I referred to those posts, and answered some of the questions posed in the Consultation. In my view, the anthem should be treated with respect and dignity, and there is a good case to be made for legislation to protect it from inappropriate commercialisation. However, I do not think that copyright is a suitable means to this end. Instead, I think that it is a matter for a specialist piece of legislation, specifically directed to the issue. I have drafted a possible Bill (doc), and I attached it to my submission to the Committee, and my answers to the Committee’s questions reflect the drafting choices in the attached Bill.

(more…)

Digital resource lifespan, via xkcd; or why copyright law must permit digital deposit

xkcd 1909 Digital Resource Lifespan

The description for this picture provides:

I spent a long time thinking about how to design a system for long-term organization and storage of subject-specific informational resources without needing ongoing work from the experts who created them, only to realized I'd just reinvented libraries.

This picture is worth many thousand of my words:

The Irish Constitution at 80 – Property Rights, Proportionate Restrictions, and Media Pluralism

Constitution at 80 conference in ULA conference to mark 80 years of Bunreacht na hÉireann, the Irish Constitution, will be hosted by the School of Law, University of Limerick on 11 November 2017 in the Irish World Academy of Music and Dance. The conference will bring together judges, scholars, practitioners, and those with experience of constitutional governance to reflect upon and discuss the past, present and future of Ireland’s constitutional order at this important milestone. Keynote presentations will be delivered by Emily Logan, Chief Commissioner of the Irish Human Rights and Equality Commission, and Mr Justice Donal O’Donnell, Judge of the Irish Supreme Court. I will be delivering a paper in the following panel:

PROPERTY, SOCIAL ECONOMIC RIGHTS AND INJUSTICIABILITY

Dr Eoin O’Dell: Property Rights, Proportionate Restrictions, and Media Pluralism

Dr Claire M Smyth: Social and Economic Rights, Irish Constitution and International Obligations

James Rooney: The Injusticiable Constitution and the Common Good: The Preamble and Directive Principles in Contrast

This is the abstract of my paper:

A Report on the Concentration of Media Ownership in Ireland (2016) raised “grave concerns about the high concentration of media ownership in the Irish market”, and the Irish report for the EU’s Media Pluralism Monitor recommended that legislative limits on levels of media concentration should be applied retrospectively. As a consequence, a Private Members’ Bill, the Media Ownership Bill 2017, proposed to permit the Minister for Communications, Energy and Natural Resources to take “retroactive measures” to reduce “significant interests” held by “any one relevant media asset”. This plainly engages the Constitution’s protections of property in Article 40.3 and Article 43.1, which are among the most consistently litigated of its rights since 1937. This paper will consider the nature and extent of the Constitution’s protections of property, the strength of media pluralism and diversity as elements of social justice or the common good that can constitutionally limit property rights, and the extent to which the Bill nevertheless constitutes an unjust (usually, a disproportionate) attack on any engaged property rights.

Kudos to Laura Cahalane and David Kenny, and to their team in UL, Hope Davidson, Caitlin Moyne, and Stephen Strauss-Walsh, for putting together such a great event. The draft programme may be downloaded here (.docx); all are welcome to attend; there is a modest fee; and registration is required.

Making headlines defending speech

Headlines & Fake NewsIn Trinity College Dublin, where I work, the Long Room Hub is the College’s Arts & Humanities Research Institute. It hosts over 250 events each year, including a discussion series entitled Behind the Headlines, which offers background analyses to current issues by experts drawing on the long-term perspectives of Arts & Humanities research. In particular, the series “aims to provide a forum that deepens understanding, combats simplification and polarization and thus creates space for informed and respectful public discourse.”

In the recent past, the series has featured discussions on artificial intelligence, Trump’s America, Syria, and Brexit (not once but twice). The next event in this series will be on Monday 6 November 2017, 6:30pm to 8:00pm, on

Freedom of Speech: Where Journalism and the Law Collide at the Boundary of 21st Century Debate

In a world where truth is under siege, freedom of speech has never been more important. But, as outrage and offense in public debate become a commodity for social media technology giants, the future of professional journalism in educating public opinion while challenging authority and power is increasingly under attack. …

This discussion is part of the ‘Fears, Factions and Fake News’ symposium held in conjunction with Columbia University and in partnership with Independent News and Media.

I am one of the four speakers; the other three are Professor Todd Gitlin (Columbia Journalism School, Columbia University), Dearbhail McDonald (Independent News and Media Group Business Editor) and Andrea Martin (media lawyer and speaker, MediaLawyer Solicitors).

Last Sunday, under the headline Major free speech symposium by INM, TCD and Columbia, the Sunday Independent ran a piece by Wayne O’Connor about the ‘Behind the Headlines’ discussion and the other events in the symposium. This provoked a response by Peter Murtagh in this morning’s Irish Times:

US academic pledges to defend free speech ‘with anyone’s funding’

Conference, partly funded by INM, has been criticised because of links to Denis O’Brien

A leading US academic due to speak at a conference partly funded by Independent News and Media has said he “will defend the right to seek truth and to campaign against any and all assaults on the freedom of speech”. Prof Todd Gitlin of Columbia University’s prestigious school of journalism will participate in a seminar on November 6th entitled Freedom of Speech – where journalism and law collide.

The conference has been criticised because of the links to Denis O’Brien, a leading INM shareholder and the owner of Communicorp, one of the biggest radio stations groups in Ireland. … Saying that he had not “previously heard” of Mr O’Brien, Prof Gitlin said: “Please be assured that in any setting, with anyone’s funding, I will defend the right to seek truth and to campaign against any and all assaults on the freedom of speech.”

So, an event about “behind the headlines” is making headlines itself. (more…)