cearta.ie – the Irish for rights

Coronavirus and copyright – or, the copyright concerns of the widespread move to online instruction – updated

15 March, 202023 March, 2020

Update: this post has been updated to discuss the Irish Copyright Licencing Agency’s applicable licences.

I work in Trinity College Dublin, which announced on Tuesday that education would be delivered online from next Monday. The National Forum for the Enhancement of Teaching and Learning in Higher Education has put together a very useful spreadsheet of links to useful online teaching resources. But, in our race to go online in time to deliver classes to our students, we must not forget that copyright law continues to apply. In that regard, I’m delighted to note that recent reforms to Irish copyright law will make all of our lives easier. The Copyright and Other Intellectual Property Law Provisions Act 2019 (also here) [COIPLPA] amended the Copyright and Related Rights Act 2000 (also here) [CRRA] in various significant ways, in particular relating to online educational uses of copyright material.

Section 50 CRRA provides for an exception of fair dealing for the purposes of research or private study, section 53 provides for an exception for acts done for the purposes of instruction or examination, and section 57 provides for an exception for reprographic copying by educational establishments. Article 5(3)(a) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ L 167, 22.6.2001,…

The legal perils of hot coffee – from the Circuit Civil Court in Dublin to the Court of Justice of the European Union in Luxembourg

20 January, 2020

| No Comments

| Tort

Without my first cup of coffee, I don’t function in the mornings. So, it’s not a surprise that some recent headlines about coffee caught my eye: Woman who was scalded when coffee spilled in her lap at drive-throughr awarded €30k damages (The Independent); Woman awarded €30,000 after takeaway coffee spill causes burns (The Irish Times); Woman (29) awarded €30k after she was scalded by coffee spill at McDonald’s drive-thru (The Journal.ie); Unable to have ‘intimate relations’ for 8 months: Woman, 29, receives €30k award after coffee spill (The Examiner); €30,000 for woman who could not have sex after McDonald’s scald horror (The Herald). All of the reports begin in the same way:

A 29-year-old woman, whose thighs and genitals were scalded when coffee was spilled in her lap at a McDonald’s drive-through takeaway in Clondalkin, Co Dublin, has been awarded €30,000 damages in the Circuit Civil Court.

Ciara Corboy, of Oatfield Avenue, Clondalkin, told Judge Francis Comerford that in November 2017 while being handed a large Americano at the drive-through restaurant at The Mill Shopping Centre, Clondalkin, a lid that had not been properly secured to the cup had come off causing her to be scalded in her thighs, groin and private parts.

…

The Irish Government’s proposed Online Safety and Media Regulation Bill has a surprising omission

11 January, 202013 January, 2020

| 1 Comment

| Cyberlaw

Last October and November, I sketched the evolution of the government’s proposals for a digital safety commissioner. Following a consultation process last Spring, and missing the deadline of the end of the year by a few weeks, they have published their proposals for the general scheme of the Online Safety and Media Regulation Bill. In its current form, important elements are dangerously vague, and there is an unpardonable oversight in the drafting – like the famous mint, there is a hole in the middle of the Bill; unlike the mint, the hole isn’t meant to be there; and I will return to this point in the last paragraph below.

The Irish proposal is the newest in a long line of recent initiatives, at state and international level, that seek to regulate online content in various ways. For example, the EU has revised the Audiovisual Media Services Directive (AVMS II) to regulate the audiovisual sector, it is promoting a code of conduct on countering illegal hate speech online, and it has controversially expanded the reach of copyright online. The UK has proposed widespread regulation of online harms, the new government has promised to develop legislation to improve internet safety for all, and a draft Online Harm Reduction Bill is to be introduced as a Private Members Bill in the House of Lords.…

Damages for Data Protection Breaches – II – Why Murphy v Callinan is wrong

13 December, 2019

| 4 Comments

| Data Protection

In my previous post in this series, I argued (yet again) that Collins v FBD Insurance plc [2013] IEHC 137 (14 March 2013) was wrongly decided. It precludes a claim for damages for distress for breach of data protection rights, pursuant to section 7 of the Data Protection Act, 1988 (also here) [hereafter: section 7 DPA88]. Building on a case in which the Workplace Relations Commission ordered a company, whose CEO hacked into an employee’s phone and downloaded intimate photos of her from it, to pay her a total of €94,708 damages, I argued that, if the surreptitious download had occurred outside an employment relationship, the complainant should be able to recover damages for distress for breach of her data protection rights, pursuant to section 7 DPA88. However, when the Supreme Court was presented with an opportunity to depart from Collins, it did not take it. Instead, in Murphy v Callinan [2018] IESC 59 (30 November 2018) Baker J (Clarke CJ and Dunne J concurring) approved and applied Collins. In my previous post, I argued that Collins was wrong as a matter of domestic law, and of European law, and that Google Inc v Vidal-Hall [2016] QB 1003, [2015] EWCA Civ 311 (27 March 2015) and Case C–362/14 Schrems v Data Protection Commissioner (ECLI:EU:C:2015:650; CJEU, 6 October 2015) illustrated the EU law points and undercut the reasoning in Collins.…

Man wins ‘fleeting defamation’ case and is awarded €500 – should the law of defamation really concern itself with such a trifle?

12 December, 20194 March, 2020

| No Comments

| 2016-17 Reform, Defamation

The latin maxim “de minimis non curat lex” is usually translated as “the law does not concern itself with trifles”, meaning the courts will not consider trifling matters. Christmas may be the time for trifles (like the Christmas trifle pictured left), but the Courts are not the place for them. I was reminded of the maxim today when I read the headline that a “Man wins ‘fleeting defamation’ case against Luas and is awarded €500“. The judge is reported (here and here) to have found that:

there was a “fleeting defamation” … but, “having regard to the fact it was almost immediately expunged”, he could not find any lasting damage to his reputation or good name. In the circumstances, he awarded nominal damages of €500 [plus costs] … There was a “momentary defamation” which was almost immediately corrected such that people in the vicinity could not have reasonably formed any lasting adverse opinion of the plaintiff, …

Given the trifling sum of nominal damages, the plaintiff is lucky to have received his costs. Even more so, in my view, is he lucky to have been successful at all. I don’t think that the law of defamation should be concerned with such trifles.…

Damages for Data Protection Breaches – I – Why Collins v FBD Insurance is wrong (again)

11 December, 201913 December, 2019

| 3 Comments

| Data Protection

A story in the newspapers this morning has made me think once again about some of the weaknesses in Irish law relating to damages for data protection infringements. The Workplace Relations Commission [WRC] has ordered a company, whose CEO hacked into an employee’s phone and downloaded intimate photos of her from it, to pay her a total of €94,708 damages (see, eg, Breaking News | Irish Independent | Irish Sun | Irish Times | TheJournal.ie). She had plugged her phone into his laptop to charge it, and he downloaded the images while she was in the bathroom. The award of €94,708 includes €65,000 for persistent sexual harassment, and €25,000 for unfair dismissal. The case is WRC Adjudication ADJ-00020222 An International Sales and Marketing Executive v A Fashion Company (25 November 2019); the report explains that the download occurred in October 2017, and that the complainant became aware of this in March 2018. She found herself in a terrible situation, but at least she was able to get some compensation for breaches of various pieces of workplace legislation. And the WRC Adjudication Officer ordered the respondent “to immediately destroy all photographs or images that depict the complainant or belong to her”.…

Fair Use in South Africa; and the road not taken in Irish and Australian copyright reforms

3 December, 20194 December, 2019

| No Comments

| Copyright, CRC12 / CRC13, Fair use

Copyright reform is under consideration in many jurisdictions, including Australia, Canada, New Zealand, Singapore, South Africa, and the United Kingdom. It has just been completed in the EU. In Ireland, the long-awaited Copyright and Other Intellectual Property Law Provisions Act 2019 (here and here) was signed by the President on 26 June 2019 last; in an unexplained delay, it took until 26 November 2019 for the Minister for Business, Enterprise and Innovation, Heather Humphries, to specify 2 December 2019 as the day on which most of the Act – eventually – came into force. In a future post, I will blog about the important changes made by the Act; in this post, I want to mention a road not taken. In May 2011, the Government established a Copyright Review Committee (CRC) to identify any areas of Irish copyright legislation that might create barriers to innovation and to make recommendations to resolve any problems identified.

In particular, one of the terms of reference required the CRC to “examine the US style ‘fair use’ doctrine to see if it would be appropriate in an Irish/EU context”. It was a controversial topic, with powerful views expressed both for and against the exception.…