Reputation as Property

This is a call for papers for a conference on Reputation as Property: Perspectives from Tort and Property, to be held on 18-19 January 2019 in Trinity College Dublin:

Reputation on PropertyHow can tort law account for the harm of defamation? One answer to this question is to argue that our reputation is or is like property. While this analogy may make sense to tort law theorists, particularly those seeking to give an internal account of tort law, it may not make sense to property theorists. In addition, it is not clear whether this approach fits with the case law. Whether or not thinking about reputation as property makes sense raises the question of whether tort law theory understands property differently than property theory does. It also raises the question of whether the theory of the tort of defamation fits the case law. In what ways does it make sense to think about reputation as property, and in what ways does it not?

In this workshop, organised in association with the Private Law Group at Trinity College Dublin, we seek to bring together property and torts scholars to discuss both theoretical and doctrinal approaches to the question of whether reputation is property or not.

We are interested in examining the contexts in which reputation as property already exists as an accepted doctrine – such as corporate and commercial law, where it takes the form of goodwill – and whether this understanding can be transferred to other areas of law, such as privacy and data protection law, and whether ‘property’ is the right term for the value of reputation. Our goal is to think through new understandings of reputation and how harm to reputation can be accounted for by law and how (or if) these can lend coherence across different areas of law. We welcome papers which engage with these and related issues.

Submission and Selection Email abstracts (max 500 words) to Dr. Sarah Hamill (Trinity College Dublin) and Dr. David Mangan (City, University of London) by October 22, 2018. Acceptances will be communicated by November 9, 2018.

Fore! Wayward golf winnings, restitution of mistaken payments, and interceptive substraction

Dinosaur golfer; via PixabayLast month, English golfer Tommy Fleetwood came twelfth in The Open golf championship. Earlier this month, Thomas Fleetwood had the St£120,000 (US$154,480, €133,000) winnings deposited in his bank account. There doesn’t seem anything exceptional in that story, so let’s try again. Last month, British golfer Tommy Fleetwood came twelfth in The Open golf championship. Earlier this month, Florida golfer Thomas Fleetwood had the St£120,000 winnings deposited in his bank account. That’s right – golf’s authorities lodged the winnings to the bank account of the wrong golfer. One of Thomas’s golf friends posted a picture of the lodgement record on twitter. And Thomas duly repaid the wayward deposit. But he would not have been able to keep it anyway, had he been minded to. As I have said before on this site, you can’t keep the proceeds of a bank error in your favour; and, if you do, you probably won’t be able to get out of jail free (see also here, here, here, here, and here). So, Thomas would have had to give back the winnings to golf’s authorities; and they in turn will no doubt pay them on to Tommy, if they have not already done so.

We are so used to wayward golf shots that there is a convention that the golfer hitting the wayward shot shouts “fore!” to alert those in its path. Wayward winnings are less common. So, purely as a hypothetical for the purposes of this post, let us assume that Thomas hadn’t repaid them. It is clear that the golf authorities could sue him to recover their mistaken payment (more…)

CAO points for law, 2018 – Updated

CAO logo, via Wikipedia
On 20 August 2018, the Central Applications Office (the CAO) issued the first round of offers of places in Ireland’s higher education institutions. It seems that CAO applications to Trinity fell by 8%, which was almost double the national 4.5% decrease, in part because Brexit has had an impact on course choices and applications. However, demand for law courses is generally up by an average of 3% overall. In the table below, I set out the points for law courses in the first round in the second-last column.

Update: On 30 August 2018, the Central Applications Office (the CAO) issued the second round of offers of places in Ireland’s higher education institutions. This round saw significant falls in points for some courses in Dublin and Cork, which may be due to the housing crisis in the high levels of rents and low levels of rental property supplies in those cities. In the table below, I set out the points for law courses in the second round in the last column.

Code Course
     College
First Round Second Round
Level 8 Courses
AL851 Business & Law
     Athlone Institute of Technology
300
AL853 Accounting & Law
     Athlone Institute of Technology
377
CW708 Law-LLB
     Institute of Technology, Carlow
298
CW938 Business with Law
     Institute of Technology, Carlow
281
CK301 Law (Pathways)
     University College Cork
495
CK302 Law & French
     University College Cork
542
CK304 Law & Irish
     University College Cork
507
CK307 Law & Business
     University College Cork
542
DB514 Business Studies (Law)
     Dublin Business School
252 200
DB568 Law
     Dublin Business School
244 203
DC230 Economics, Politics & Law
     Dublin City University
400
DC232 Law & Society (BCL)
     Dublin City University
455
DC292 Arts (Joint Hons) Law
     Dublin City University
351
DT321 Business & Law
     Dublin Institute of Technology
463
DT532 Law (LLB)
     Dublin Institute of Technology
430 419
GC403 Law (Dublin)
     Griffith College
253 218
TR004 Law
     Trinity College Dublin
533
TR017 Law & Business
     Trinity College Dublin
577
TR018 Law & French
     Trinity College Dublin
567 566*
TR019 Law & German
     Trinity College Dublin
509
TR020 Law & Political Science
     Trinity College Dublin
578
DN600 Law
     University College Dublin
522 521*
DN610 Business & Law
     University College Dublin
531*
GY250 Corp Law
     National University of Ireland, Galway
409
GY251 Civil Law
     National University of Ireland, Galway
451
LY208 Law
     Letterkenny Institute of Technology
270
LC223 Law & Taxation
     Limerick Institute of Technology
307
LM020 Law & Accounting
     University of Limerick
440
LM029 Law Plus
     University of Limerick
477
MH501 LLB Law
     Maynooth University
451
MH502 Law
     Maynooth University
420
WD140 Laws
     Waterford Institute of Technology
290
Level 6 & 7 Courses
CW926 Business with Law
     Institute of Technology, Carlow
208
LY207 LY207 Law – with Criminal Justice or Spanish or Irish
     Letterkenny Institute of Technology
160

* Not all candidates on this point score were offered places.

Germany’s wifi laws

Germany wifi (German flag detail and wifi icon via Wikipedia)In the early days of this blog, I wrote three posts on whether there is a criminal or civil legal liability for using other people’s wifi without permission.

I was reminded of these posts yesterday, when Edmund Heaphy (a student in Trinity, and a journalist at Quartz) contacted me about the following story:

The unique legal concept that led to Germany’s weird wifi laws

Germany is about to get a lot more free wifi. One of the country’s highest courts has upheld a 2017 law designed to put an end to the effect of a peculiar legal concept known as Störerhaftung as it applies to public wifi networks. …

Whilst the decision of the Bundesgerichtshof (Federal Court of Justice) is very welcome, German lawyers have told the World Intellectual Property Review that more clarity is needed. As Mateusz Rachubka points out o the 1709 Blog, the 2017 legislation is a result of the decision of the CJEU in Case C-484/14 Tobias McFadden v Sony Music Entertainment Germany GmbH, which held that the eCommerce Directive (Directive 2000/31/EC; OJ 2000 L 178, p. 1) precluded a rights-owner seeking damages from an access provider whose open network was used by a third party to upload or download material that infringed copyright, but did not preclude the rights-owner seeking an injunction requiring the access provider to terminate or prevent a copyright infringement.

Blocking injunctions in the Irish and UK courts after Sony v UPC and Cartier v BT – Part I – Jurisdiction

Sony, Sky, Cartier (logos via sony.ie sky.com cartier.co.uk)In today’s Irish Times, Mark Paul reports that “three global music labels are limbering up to seek a High Court order against Sky Ireland to force it to implement a ‘three strikes and you’re out’ policy against its broadband customers who download music from pirate sites”. In Sony Music Entertainment Ireland Ltd v UPC Communications Ireland Ltd [2016] IECA 231 (28 July 2016) [hereafter: Sony v UPC] the Court of Appeal held that the courts could indeed make just such an order, and that the costs of implementing it were to be borne 80% by the internet service provider, and 20% by the copyright rights-owner (subject to a cap). No doubt, the three labels involved in the action reported in the Irish Times – Sony Music Entertainment, Warner Music and Universal Music – will rely on this case in their action. However, since it was decided, the UK Supreme Court has handed down its decision in Cartier International AG v British Telecommunications plc [2018] 1 WLR 3259, [2018] UKSC 28 (13 June 2018) [hereafter: Cartier v BT], and it stands in stark contrast with Sony v UPC. The structure of both cases is exactly the same: a holder of intellectual property rights seeks an injunction against an online intermediary to prevent infringement of the rights-holder’s rights on the intermediary’s platform, and the intermediary seeks an order that the rights-holder should bear (some at least of the) costs of implementing the injunction. However, the resolution of the issues in both cases differs quite substantially: the UK Supreme Court in Cartier v BT granted the injunction on a basis rejected by the Irish courts, and it imposed the costs of its implementation entirely on the rights-holder seeking it. The application reported today provides an appropriate context in which to consider these issues. The basis of the injunctions in Sony v UPC and Cartier v BT will be discussed in this post, and the differing costs orders will be discussed in a subsequent one.

In Sony v UPC, the Court of Appeal upheld an order made by Cregan J in the High Court [Sony v UPC (No 1) [2015] IEHC 317 (27 March 2015)] requiring an internet service provider to implement a graduated response system against customers who infringe copyright. The system is graduated, because the responses range from initial warning letters to applications for to court for disconnection of the infringing customers. And the order was made on foot of section 40(5A) of the Copyright and Related Rights Act 2000 (also here) [hereafter: CRRA]. The case is the most recent reported stage of litigation between copyright rights-owners (such as music and movie companies) and internet service providers that has been ongoing since 2005. (more…)

Cliff Richard v BBC – Part II – Media speech and publication in the public interest

The record man said
‘Don’t let it go to your head, I’m gonna make you a star’
… So mama please don’t worry about me, I’m nearly famous now.

Sir Cliff Richard OBE in Greenwich 2017 (via Flickr) (element)1. Introduction
The words above are in the first verse of “I’m Nearly Famous”, the title track of an album released in 1976 by Sir Cliff Richard [Sir Cliff], pictured left rocking Greenwich, UK, in 2017. Six weeks earlier, the South Yorkshire Police [SYP] had admitted that their tip off to the BBC that he was being investigated in respect of allegations of historic sex abuse infringed his privacy (see, eg, Richard v BBC [2017] EWHC 1648 (Ch) (26 May 2017)). On foot of that tip off, the British Broadcasting Corporation [the BBC] gave those allegations and the search of Sir Cliff’s property in Sunningdale, Berkshire prominent and extensive television coverage. Last week, in Richard v BBC [2018] EWHC 1837 (Ch) (18 July 2018) Mann J held that that the BBC’s broadcasts also infringed Sir Cliff’s privacy, and awarded him £210,000 damages. In a previous post, I have considered Mann J’s analysis that Sir Cliff had a reasonable expectation of privacy under Article 8 of the European Convention on Human Rights [the ECHR] in respect of the police investigation. In this post, I will consider whether the BBC nevertheless were entitled under Article 10 ECHR to broadcast the allegations and the search. In a future post, I will consider the quantum of damages awarded.

2. Article 10 ECHR and the BBC’s Freedom of Expression
The concept of media freedom is at the heart of modern democracy (see, eg, András Koltay “The concept of media freedom today: new media, new editors and the traditional approach of the law” (2015) 7(1) Journal of Media Law 36). It is a significant point of difference between Sir Cliff’s case against the SYP and his case against the BBC. Although Mann J held that Sir Cliff’s prima facie reasonable expectation of privacy arose against both the SYP and the BBC, the difference between them arose at the subsequent stage of balancing Sir Cliff’s reasonable expectation of privacy under Article 8 ECHR with the BBC’s freedom of expression under Article 10 ECHR. Mann J undertook that balance pursuant to the speech of Lord Steyn in In re S (A Child) [2005] 1 AC 593, [2004] UKHL 47 (28 October 2004) [17], which he interpreted ([2018] EWHC 1837 (Ch) [276]) in the light of the judgment of the Grand Chamber of the European Court of Human Rights in Axel Springer AG v Germany 39954/08, (2012) 55 EHRR 6, [2012] ECHR 227 (7 February 2012) [89] (see, generally, Rebecca Moosavian “Deconstructing ‘Public Interest’ in the Article 8 vs Article 10 Balancing Exercise” (2014) 6(2) Journal of Media Law 234) He held that factors to be taken into account in balancing Article 8 and Article 10 include (a) the contribution of the publication to a debate of general interest, (b) how well-known is the person concerned and what is the subject of the report, (c) the prior conduct of the person concerned, (d) the method of obtaining the information and its veracity, (e) the content, form and consequences of the publication, and (f) the severity of any sanction imposed.

Applying each criterion in turn, Mann J held (a) knowing that Sir Cliff was under investigation might have been of interest to the gossip-mongers, but it did not contribute materially to the genuine public interest in the existence of police investigations in this area ([2018] EWHC 1837 (Ch) [282]); (b) “public figures are not fair game for any invasion of privacy” (ibid, [287]); and (c) Sir Cliff’s public position and stated views do not diminish his right to privacy in respect of allegations of the kind which underpin the BBC’s disclosures (ibid, emphasis in original); (d) the information was accurate (ibid, [289]) but the BBC’s methods of obtaining it were questionable, though this weighed only very lightly in Sir Cliff’s favour (ibid, [292], [296]); and (e) the broadcasts were presented with “a significant degree of breathless sensationalism” which “went in for an invasion of Sir Cliff’s privacy rights in a big way” (ibid, [300], [301]). He left the question of the chilling of effect of any sanction to the discussion of quantum, which I will address in a future post. He also had regard to the BBC’s editorial guidelines (as a “relevant privacy code” within the meaning of section 12(4)(b) of the Human Rights Act 1988).

Taking all these factors into account, Mann J came “to the clear conclusion that Sir Cliff’s privacy rights were not outweighed by the BBC’s rights to freedom of expression” (ibid, [315]). (more…)

Cliff Richard v BBC – Part I – Police investigations and reasonable expectations of privacy

I just got to tell someone about the way I feel,
Shout it from the rooftop to the street,
And if I spread the word please tell me who’s it gonna hurt …

Sir Cliff Richard OBE in Sydney 2013 (element)1. Introduction
The words above are the opening lines of “Can’t Keep this Feeling In“, released in 1998 by Sir Cliff Richard [Sir Cliff], pictured left in a mellow pose at a concert in Sydney, Australia in February 2013. In August of the following year, arising out of an ongoing investigation into allegations of historic sex abuse, the South Yorkshire Police [the SYP] searched a property belonging to him in Sunningdale, Berkshire; and – on foot of a tip off from the SYP the previous month – the British Broadcasting Corporation [the BBC] gave the allegations and the search prominent and extensive television coverage. Sir Cliff was never arrested or charged; and, in June 2016, the Crown Prosecution Service [the CPS] decided that Sir Cliff would not face any charges. This decision was re-affirmed by the CPS the following September, following a full review of the evidence.

Meanwhile, in July 2016, Sir Cliff commenced legal proceedings against the SYP and the BBC, arguing that SYP’s leak to the BBC in July 2014, and the BBC’s coverage of the raid in August 2014, invaded his privacy and breached his data protection rights. Before the trial, SYP admitted liability and agreed to pay Sir Cliff £400,000 damages, plus costs (see Richard v BBC [2017] EWHC 1648 (Ch) (26 May 2017)). Earlier this week, in Richard v BBC [2018] EWHC 1837 (Ch) (18 July 2018) Mann J held that that Sir Cliff succeeded in his privacy claim against the BBC and awarded him £210,000 in general damages (£190,000 in compensatory damages, and £20,000 in aggravated damages), with some items of special damages to be decided at a future date. Because of the success of the privacy claim, Mann J held that he did not need to consider the data protection point.

There are three areas of interest in Mann J’s judgment: first, whether Sir Cliff had a reasonable expectation of privacy, having regard to Article 8 of the European Convention on Human Rights [the ECHR]; second, whether the BBC nevertheless were entitled to broadcast, having regard to Article 10 ECHR; and third, the quantum of damages awarded. I will deal with the question of Sir Cliff’s reasonable expectation of privacy in this post; and I will deal with the other two issues in subsequent posts [update: the post on the BBC’s Article 10 rights is here].

2. Article 8 ECHR and Sir Cliff’s Reasonable Expectation of Privacy
In the earlier Irish case of Hanahoe v Hussey [1998] 3 IR 69, [1997] IEHC 173 (14 November 1997) Kinlen J awarded Ir£100,000 damages (worth approximately €185,000 or St£165,000 today) against the Commissioner of An Garda Síochána (Ireland’s National Police and Security Service) for a similarly unjustified leak of a similarly high-profile search. Kinlen J held that the leak was an “outrageous interference” with the defendants’ privacy rights ([1997] IEHC 173 [69]) but awarded damages for misfeasance in public office as a species of negligence ([1997] IEHC 173 [67], [73]). The SYP’s settlement, and this week’s judgment by Mann J, show that the direct protection of privacy interests has evolved sufficiently that their indirect protection via other torts is no longer necessary.

As with the phone hacking cases (see Mann J at first instance; see also the Court of Appeal), Sir Cliff’s case was commenced in the Chancery Division of the High Court, presumably reflecting the fact that the modern English protection of privacy interests began, under the impetus of Article 8 of the European Convention on Human Rights, by pressing the equitable claim for breach of confidence into service. The process continued by shearing that claim of limitations that affected its ability to protect privacy interests, before transmuting it into a claim for misuse of private information separate from breach of confidence. This claim is now characterised as a tort. So, in the present case ([2018] EWHC 1837 (Ch) [264]), Mann J referred to “the English tort which essentially gives effect” to Article 8 ECHR. This tort turns on on whether the claimant has a reasonable expectation of privacy that has been infringed by the defendant (more…)

The Proportionality of Tobacco Packaging Restrictions on Autonomous Communication, Political Expression and Commercial Speech

QUB via NILQ
The Lanyon Building, QUB
from the NILQ cover
The Summer 2018 volume of the Northern Ireland Legal Quarterly has been published this morning. Just in time for tomorrow’s seminar, and building on my earlier paper in the QUT Law Review, it contains the following piece by me:

“A Little Parthenon No Longer: The Proportionality of Tobacco Packaging Restrictions on Autonomous Communication, Political Expression and Commercial Speech” (2018) 69(2) Northern Ireland Legal Quarterly 175-211

Abstract
This paper evaluates the constitutionality of statutory restrictions upon tobacco packing in Ireland. It concludes that public health and the protection of children constitute pressing and substantial reasons sufficient to justify the Public Health (Standardised Packaging of Tobacco) Act 2015 and Part 5 of the Health (Miscellaneous Provisions) Act 2017 as proportionate restrictions upon tobacco companies’ freedom of political expression protected by Article 40.6.1 of the Constitution and freedom of autonomous communication protected by Article 40.3.1.

In many respects, Ireland has been a world leader in tobacco control, from banning smoking in the workplace or in cars with children, to requiring standardised packaging. Part 1 introduces this article; it sets out the background to the 2015 and 2017 packaging legislation. Part 2 of this article, on restrictions, describes the restrictions in the packaging legislation. Part 3 of this article, on rights, provides a conspectus of the Irish constitutional speech rights engaged or burdened by these restrictions. This Part presents these rights as comprising a freedom of political expression in Article 40.6.1 of the Constitution and a freedom of autonomous communication in Article 40.3.1. Moreover, these two rights carry concomitant rights to keep silent and to be informed. Part 4 of this article, on reasons, considers the pressing and substantial reasons which the State may proffer to seek to justify the restrictions in the packaging legislation upon constitutional speech rights. Part 5 of this article, on standards of review, considers the extent to which the restrictions in the packaging legislation, motivated by concerns relating to public health and the protection of children, satisfy the current Irish version of the principle of proportionality. It also considers the extent to which the restrictions might satisfy other standards of review or scrutiny. Part 6 concludes this article, bringing together all of the strands of analysis in the previous Parts. And it concludes that, if the restrictions on constitutional speech rights in the Public Health (Standardised Packaging of Tobacco) Act 2015 and in Part 5 of the Health (Miscellaneous Provisions) Act 2017 are challenged by the tobacco companies, the courts will find that those Acts are constitutionally valid.

Attractive packaging is an important element of a product’s effective marketing. Indeed, so central has packaging been to the allure of smoking that Leonard Cohen could extol “the little Parthenon / of an opened pack of cigarettes”. Ireland has been in the vanguard of tobacco control worldwide. With the 2015 and 2017 packaging legislation, it continues to set a very important example. The constitutional validity of these packaging restrictions would underpin a crucial element of the Department of Health’s moves towards tobacco-free Ireland by 2025. And the pack of cigarettes, with large warning photos dominating standardized packaging, would be Cohen’s little Parthenon no longer.

An earlier version of the paper, under the title “Is Standardised Tobacco Packing a Proportionate Restriction on Constitutional Speech Rights”, was delivered at the ICON-S British and Irish Chapter Inaugural Conference, Trinity College Dublin, Ireland, on 5 September 2017.