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the Irish for rights

Postdoctoral Research Fellowship: Comparative Unjust Enrichment, Paul-André Crépeau Centre for Private and Comparative Law, Faculty of Law, McGill University

Publications of the Crépeau Centre

I am delighted to post this on behalf of Professor Lionel Smith:

McGill University – Faculty of Law
Paul-André Crépeau Centre for Private and Comparative Law
Postdoctoral Research Fellowship: Comparative Unjust Enrichment

The Paul-André Crépeau Centre for Private and Comparative Law intends to appoint a Postdoctoral Research Fellow with effect from August 2016 or other agreed date. The position is funded by an Insight Grant from the Social Sciences and Humanities Research Council of Canada. The principal investigator is Professor Lionel Smith, researcher at the Crépeau Centre, and the team is composed of colleagues from McGill’s Faculty of Law and beyond. The position is for one year, with the possibility of renewal for a second year.

ABOUT THE PAUL-ANDRÉ CRÉPEAU CENTRE FOR PRIVATE AND COMPARATIVE LAW
Based at McGill University in Montreal (Quebec, Canada) the Crépeau Centre is the only research centre in Canada devoted to research in fundamental private law. Quebec’s private law is civilian, but it evolves in a North American environment that is otherwise largely grounded in the common law. Quebec’s private law therefore provides a living model for the fruitful coexistence of two legal traditions, in which the ongoing interaction of the common law and the civil law is combined with the interaction of French and English in Quebec’s bilingual civil law.

ABOUT THE RESEARCH PROJECT
The research agenda to which the position relates has two objectives: (a) to find solutions to identified uncertainties in the Canadian law of unjust enrichment, through an interdisciplinary and comparative methodology; and (b) through this study of the law of unjust enrichment, to articulate an approach to private law that could be fruitfully applied in other fields of private law. This approach will be inspired by the bijural and bilingual approach to teaching law at McGill’s Faculty of Law.

QUALIFICATIONS AND EXPECTATIONS
The applicant must hold a doctoral degree in law at the time of the appointment, or be on the point of completing one. The ideal candidate will have a solid track record of research in private and comparative law, and will propose an interesting research project that interacts with the research agenda summarized above. The candidate must be fluent in either English or French. Facility in more than one language and/or legal system would be an advantage. The position will include a salary of C$40,000 per year, and a work station and computer will be provided.

The successful candidate will pursue his or her own research project on a subject related to the research project outlined above. He or she will also assist in the activities of the Crépeau Centre, principally through involvement in the organization of academic events on comparative unjust enrichment. He or she will also take a leading role in the publication of papers arising from these events, and may also be invited to speak at one or more of them.

APPLICATION PROCEDURE
The review of applications will begin on 17 June 2016. The preferred starting date is August 2016. Applications are to be submitted electronically to , and questions about the position can be sent to the same address. Applicants should submit a covering letter, a curriculum vitae, a research proposal (maximum four pages), a transcript of postgraduate studies, and one or more writing samples (from peer-reviewed publications if possible). Applicants should also name two referees, who may subsequently be invited to send letters of reference.

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Copyright reform comes a little closer in Ireland

DJEI Brief for MinisterFurther to my post on the Brief (pdf) to the incoming Minister for Education, I note this morning that a similar Brief (pdf) to the incoming Minister for Jobs, Enterprise and Innovation has been published on that Department’s website. Under the heading “immediate priorities in the months ahead” (section 1.3, p5) I was delighted to see the following priority:

(p) A Bill to provide for amendments in the Copyright area

It is proposed to submit for Government approval before summer 2016, a Memorandum for Government with draft Heads of a Bill seeking approval to draft a Bill aimed at achieving certain reforms and modernisation of certain aspects of copyright. [p8]

Similarly, under the heading “key priorities for the Innovation and Investment Division” (section 2.2, p22), I was delighted to see the following priority (emphasis added):

(b) Intellectual Property
(i) Implement a new certification scheme for Intellectual Property to enable small companies to qualify for the Knowledge Development Box (KDB) alongside legislation to underpin this initiative and, separately progress necessary legislative changes to patents legislation;
(ii) Continue preparatory work in the lead up to a referendum on ratification by Ireland of an international Agreement setting up a Unified Patent Court to adjudicate on patent litigation;
(iii) Progress amendments to copyright legislation in response to recommendations in the Report of the Copyright Review Committee.
(iv) Examine and negotiate proposals in the Intellectual Property area emerging from the European Commission in the context of the Digital Single Market and, the Single Market Strategy;
(v) Examination of legislative commitments in the Intellectual Property area to facilitate Ireland’s bid for upcoming major sporting events. [p23]

As to the detail of progressing amendments to copyright legislation, the Brief provides as follows (pp64-65):

Item
Progressing amending legislation in the copyright area in response to recommendations in the Report of the Copyright Review Committee

Summary
The Report of the Copyright Review Committee, an independent Committee appointed by the Minister was published in late 2013. The Committee was tasked with examining the Irish copyright framework to identify any areas that might be considered to create barriers to innovation and, to recommend a resolution to any problems identified in terms of how any barriers identified might be overcome. The report contains in excess of 60 recommendations covering a diverse range of copyright issues.

Following extensive analysis of the recommendations contained in the Report, the Department is currently developing the heads of Bill for a Copyright Bill for consideration by Government. This follows from an in-depth assessment of the complex legal issues involved in certain of the proposals with the Office of the Attorney General as well as examination of the proposals from a policy perspective. Where recommendations involved issues under the remit of other Government Departments, these Departments have also been consulted. Due consideration has also been given to evolving developments in the copyright context at EU level in particular.

Next steps/timeframe
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXX.

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXX.

Lead officials: A/Sec: Dermot Mulligan; Anne Coleman-Dunne

I have mixed feelings about all those Xs. On the one hand, I think it’s a pity that the next steps and timeframe are redacted On other hand, I think it might be encouraging in so far as it means that the information is sensitive, which in turn suggests that we are at crucial stage in this process.

Finally, in the list of “primary Legislation under consideration” (section 7.2, p172), I was delighted to see the following item:

(k) Amending legislation to the Copyright and Related Rights Act 2000 in response to the recommendations of the Copyright Review Committee

Moreover, there is much in the Brief about the Department’s engagement with ongoing EU copyright developments. This is all very encouraging. As the title of this post provides, Copyright reform comes a little closer in Ireland.

Cross words about copyright and today’s Irish Times simplex crossword

Copyright CrosswordMy dad’s voice comes from the other room, asking “document granting exclusive right to publish?”, adding that “it’s in nine letters”. It turns out that this is the clue for nineteen down in today’s today’s Irish Times simplex crossword. It also turns out that the answer is “copyright”. I had spent at least a quarter of an hour assuring him that the answer couldn’t possibly be “copyright”, because copyright automatically vests if the work is original, and no additional grant of copyright, or document granting an exclusive right to publish, is necessary. As the Patents Office explains “the act of creating a work also creates the copyright, which then subsists in the physical expression of the work”. To the extent that there is anywhere a document granting a right to publish, the closest is an imprimatur, but that didn’t fit. And somebody who holds a copyright in a work can license its use to someone else, and can even licence its exclusive use to someone else, but “licence” didn’t fit either (and anyway, licences are permissions to do lots of things, like drive a car, use a television, or keep a dog; they are not confined to publications or copyrights; and they don’t have to be written documents). When the letters from the interlocking clues gave C_P_R_G_T, I had to concede that the answer was indeed “copyright”, but I continued to insist that the combination of clue and answer is just plain wrong.

When Dad is doing crosswords, we often have debates about the accuracy of crosswords clues and answers, and dictionaries and online searches are deployed to dispute the rigour of a clue or the precision of an answer. It’s all part of the fun of doing crosswords. But, in my view, this combination of clue and answer goes well beyond the bounds of friendly disagreement. It is quite simply false to say that a “copyright” is a “document granting exclusive right to publish”. A quick online search told me that “document granting exclusive right to publish” is used pretty regularly as a crossword clue with “copyright” as the answer. So, it’s wrong a lot. But that makes things worse. Lots of crossword setters use this clue, and lots and lots of unsuspecting crossword solvers are being misled as a consequence. This is a very great shame.

Or maybe I’m just looking for an excuse not to get back to the exam scripts which are not being corrected as I type.

Some third level legislation envisaged in the Brief to the incoming Minister for Education

Brief for Minister of Education 2016A brief prepared by the Department of Education and Skills for the incoming Minister has been making some waves this morning. What it has to say about third level funding is dispiriting, but I won’t bellyache about that here. Instead, I want to look at some of the legislation affecting third level that is envisaged in the Brief. This is a regular theme on this blog, most recently in a series of posts this time last year (I, II, III, IV). As to the Department’s legislative programme, the Brief (pdf) says (links added):

The Department is engaging in a programme of important legislative reform. … There are two Bills which had been published but had not completed their passage through the Oireachtas before the dissolution of the Dáil in February: [the Education (Admission to Schools) Bill and the Technological Universities Bill] …

Drafting is under way on a further two Bills.
Universities (Amendment) Bill – The main purpose of this Bill is to allow the Minister for Education and Skills to give a direction to a university requiring it to comply with policy decisions made by the Government relating to the remuneration or numbers of public servants employed in that university. The OPC [the Office of the Parliamentary Counsel to the Government] is well advanced on drafting the text of the Bill and a final draft is awaited.
Retention of Certain Records Bill – …

Work is under way in the Department on the preparation of general schemes for two further pieces of legislation.
Higher Education Authority Bill – The purpose of the Bill is to replace the Higher Education Authority Act, 1971 and amend other relevant legislation. Work on the general scheme is under way.
Qualifications and Quality Assurance (Amendment) Bill – The purpose of the Bill is to amend the 2012 Act …[pp16-17; see also pp217-219].

Moreover, we are told in the Brief – not once, but twice – that a General Scheme for the Higher Education Reform Bill will be published “in Q2 2016”. Here are the two contexts (links and emphasis added):

Higher Education – Policy and Skills
… Higher education policy is focused on implementation of the National Strategy for Higher Education to 2030 [pdf], which was published in January 2011. The Strategy sets out a comprehensive roadmap for reform of the higher education system, with the aim that the system becomes more performance-oriented and more flexible and responsive, while the diversity of mission is retained and enhanced. … Implementation of the Strategy requires a range of governance, funding and structural reforms which need to be enabled through legislation. The current state of play regarding higher education legislation is as follows:

Technological Universities Bill: This Bill was published in December 2015 and was at Report Stage at the time of dissolution of this Dáil in February 2016.

General Scheme for the Higher Education Reform Bill: the current draft provides for University governing body reform and reform of the HEA [Higher Education Authority]. Priority issues for inclusion in the Bill are currently being reviewed, however, the aim is to publish the General Scheme of this Bill in Q2 2016. …

Higher Education Reform Programme
The the National Strategy for Higher Education to 2030 [pdf] sets out a comprehensive roadmap for reform of the higher education system. In order to ensure that the system becomes more performance oriented, more flexible and responsive while its diversity in terms of mission is retained and enhanced, a range of governance, funding and structural reforms are being progressed. … In May 2013, the then Minister set out his response [pdf] to HEA advice on the future confirguration of the higher education system, particularly in relation to the establishment of regional clusters, the implementation of the recommendations of the Initial Teacher Education review and the technological university expressions of interest. The Minister’s policy direction is now being implemented. … [In particular, the application process for criteria for designation as a Technological University] will be placed on a statutory basis through the enactment of the Technological Universities Bill

[To implement the] the National Strategy for Higher Education to 2030 [pdf] … legislation is required to provide for: …
– Strengthening and reforming the governance structures and accountability of higher education institutions (smaller, less representative, skills based, external majority governing boards);
– Putting in place a new funding, performance and accountability framework for the system that provides statutory underpinning for respective roles, functions and powers of the Minister and a new Higher Education Authority for the governance and regulation of the system; …

General Scheme for the Higher Education Reform Bill: University governing body reform and Reform of the HEA will be provided for in a Higher Education Reform Bill. The policy priorities to be addressed in the Bill are being reviewed and the aim is to publish the General Scheme of this Bill in Q2 2016. [69-74]

There is no further detail in the Brief about the General Scheme for the Higher Education Reform Bill. As to its pre-history, the Minister for Education published a General Scheme of a Universities Amendment Bill in 2012 (pdf), which provided for a very heavy-handed means of ensuring compliance with government guidelines on remuneration, including a very cumbersome procedure for the appointment of a person to exercise the functions of the university in respect of remuneration. Read more

The process of judicial appointments and the eligibility of academics

Prog for Govt cover with Mortarboard and WigAs has been widely reported, a new Judicial Appointments Commission for appointing judges forms a key element of the Programme for Government, to reduce political influence in the judicial appointments process. The new Commission will have an independent chair selected by the Public Appointments Service and approved by an Oireachtas committee, though the final decision on judicial appointments will remain with the Government. Reflecting the commitment in the Confidence and Supply Arrangement for a Fine Gael-Led Government entered into between Fine Gael and Fianna Fáil that the Government will “establish a Judicial Appointments Commission to identify the most suitable candidates for judicial office”, the Programme for a Partnership Government provides (Chapter 16, section 6, at page 152) (pdf):

We will introduce legislation to replace the Judicial Appointments Advisory Board with a new Judicial Appointments Commission. The new structure will include a reduction in its membership, an independent chairperson selected by the Public Appointments Service and approved by an Oireachtas Committee, and a lay majority including independent people
with specialist qualifications.

We will reform the judicial appointments process to ensure it is transparent, fair and credible. We will reduce the number of suitable candidates proposed by the Judicial Appointments Commission for each vacancy to the lowest number advised as constitutionally and legally permissible by the Attorney General, but in any event not more than three candidates to be shortlisted by the Judicial Appointments Commission for any vacancy.

The new Chair of Judicial Appointments Commission will be asked to attend the relevant Oireachtas Committee on an annual basis to report on implementation of its statutory remit.

This is all very much to be welcomed. I hope that when legislation on the issue is being drafted, the opportunity will be taken to permit legal academics to apply for appointment to be bench, especially at appellate level. There is no good reason against this development, and draft legislation to this effect was introduced into the last Seanad.

Update (18 May 2016): I referred in an earlier post to the current vacancy in the Supreme Court of Canada, where there is also a debate about the process of judicial appointments, especially to the Supreme Court: Emmett Macfarlane on Here’s how Canada should vet its Supreme Court nominees; and Carissima Mathen on We don’t need hearings to help in appointment of a new Supreme Court justice.

In the inugural Arthur Browne lecture, Prof Gráinne de Búrca says that EU anti-discrimination law is not really in decline

Arthur Browne KC MP (1756-1805) (pictured left; see wikipedia | DNB) was a Regius Professor of Law in Trinity College Dublin, and a leading Irish lawyer and politician, at the end of the eighteenth century:

Browne was one of the most distinguished academic lawyers to teach in Trinity College, Dublin, perhaps the ablest. His writings are still worth reading; and not merely for their historic interest. His life reveals a lawyer of wide culture and compassion, who tried in the turmoil and cruelty of eighteenth century Ireland to reconcile opposition to popular violence and an attachment to the established state and church with opposition to arbitrary state power. His views on legal education and on many aspects of the law were enlightened for the time. Browne deserves a place in the history of Irish law, and not merely as the last Irish Prime Serjeant.

[Paul O’Higgins “Arthur Browne (1756-1805):
An Irish Civilian” (1969) 20 NILQ 255, 270].

The Irish jurist Arthur Browne was one the most gifted legal scholars of eighteenth-century Ireland; he was also an educator, an advocate, and a parliamentarian. Born in America of Irish parentage, Browne studied at Trinity College, Dublin, eventually becoming professor of civil law and publishing works on civil, admiralty, and ecclesiastical law at the turn of the nineteenth century. A Hiberno-civilian, he acted as advocate and judge in both the common and civil law courts and was the last prime serjeant of Ireland. The polyglot Browne wrote political tracts, translations, and literary and antiquarian essays. He was also an MP (1783-1800), a passionate protestant, and an Irish whig.

[Seán Patrick Donlan “‘The Debt Is Forgotten’:
A Compendious View of Arthur Browne, c1756-1805”
(2009) 13(3) Electronic Journal of Comparative Law;

see also JC Sweeney “The Admiralty law of Arthur
Browne” (1995) 26 Journal of Maritime Law and
Commerce
59; and Seán Patrick Donlan “‘Regular
Obedience to the Laws’. Arthur Browne’s Prelude to
Union” in Seán Patrick Donlan and Michael Brown
(eds) The Laws and Other Legalities of Ireland,
1689-1850
(Routledge, 2011 | Amazon) 255.]

A full biography is due later this year. Meanwhile, the School of Law, Trinity College Dublin has inaugurated an annual series of public lectures in his honour and memory. Last Friday, Prof Oran Doyle, Head of the School of Law, introduced the inaugural Arthur Browne lecture by Professor Gráinne de Búrca, who posed the question

Is EU Anti-Discrimination Law in Decline?

Her ultimate answer is that it is not really in poor health, but she did point to some symptoms of abatement which had prompted the question in the first place, and she ultimately argued that EU anti-discrimination law is not so much in decline as in a new and more complex phase of its development. At a time when Europe is in crisis on multiple fronts, the protection of the marginal is all the more important. A commitment to equality and non-discrimination is a mark of a humane society, especially at times of stress.

For many decades, EU equality law was seen as a powerful norm, especially in the hands of the Court of Justice of European Union. The Court which staunch in its promotion of gender equality in the workplace; and the many of its developments were then incorporated into legislation. In particular, from Case C-43/75 Defrenne v Sabena [1976] ECR 455 onwards, the Court invented a general principle of equality, broadened it to reach indirect discrimination, reversed the burden of proof once discrimination has been prima facie established, and expanded the range of grounds of discrimination. This was taken up by what is now Article 19 TFEU (originally introduced by the Treaty of Amsterdam, 1997), which provides that the Council and Parliament “may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation” and by Title III of the Charter of Fundamental Rights of the European Union. This was capped by two Directives in 2000: Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin [the Race Directive], and Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [the Framework Directive]. This was the high-point of the development of the EU anti-discrimination law, and it was her analysis of what has happened since 2000 that suggested that EU anti-discrimination law might be in decline. In particular, a third Directive proposed in 2008 (effectively to align the protections provided in the two 2000 Directives) has stalled; the two 2000 Directives have given rise to a relatively low number of cases before CJEU; and the nature and substance of the Court’s rulings in the few cases have reached it have been cautious where they used to have been ambitious.

Prof de Búrca (pictured left) compared and contrasted the two 2000 Directives. They both require equal treatment in employment on the various grounds covered by them; but, whilst the Framework Directive is confined to the employment context, the Race Directive extends beyond that to reach social protection, education, and access to and supply of goods and services. So, whilst the personal scope of both is very wide, the Framework Directive is broader in that it goes to broader range of grounds, but it’s narrower in that it’s limited to the employment context. Moreover, Article 3(2) of the Race Directive provides

This Directive does not cover difference of treatment based on nationality and is without prejudice to provisions and conditions relating to the entry into and residence of third-country nationals and stateless persons on the territory of Member States, and to any treatment which arises from the legal status of the third-country nationals and stateless persons concerned.

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After a challenge to ObamaCare, will there be Restitution to the Executive in the US?

Seal of the US House of Representatives, via WikipediaIn US House of Representatives v Burwell (pdf), US District Judge Rosemary M Collyer has today upheld the challenge of the House of Representatives to a portion of the Patient Protection and Affordable Care Act (ObamaCare), ruling that the government had wrongly spent billions of dollars in the past two years to reimburse insurance companies for providing health coverage at lower costs to low and moderate income consumers. There is no mention in the judgment about the recovery of the unauthorised reimbursements, but the case plainly raises that question, which I have been discussing in a series of posts (I, II, III, IV, V, & V(a)) on this blog. There is another post to come in the series, and an addendum – but the implications on Burwell are too big to postpone.

The judge set up the issue in this way:

This case involves two sections of the Affordable Care Act: 1401 and 1402. Section 1401 provides tax credits to make insurance premiums more affordable, while Section 1402 reduces deductibles, co-pays, and other means of “cost sharing” by insurers. Section 1401 was funded by adding it to a preexisting list of permanently-appropriated tax credits and refunds. Section 1402 was not added to that list. The question is whether Section 1402 can nonetheless be funded through the same, permanent appropriation. It cannot.

She said this about appropriation:

Authorization and appropriation by Congress are nonnegotiable prerequisites to government spending: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law …” … [US Constitution] art. I, § 9, cl. 7; see also United States v MacCollom 426 US 317, 321 (1976) (“The established rule is that the expenditure of public funds is proper only when authorized by Congress, not that public funds may be expended unless prohibited by Congress.”). …

Appropriation legislation “provides legal authority for federal agencies to incur obligations and to make payments out of the Treasury for specified purposes.” … Appropriations legislation has “the limited and specific purpose of providing funds for authorized programs.” … An appropriation must be expressly stated; it cannot be inferred or implied. 31 U.S.C. § 1301(d) (“A law may be construed to make an appropriation out of the Treasury . . . only if the law specifically states that an appropriation is made.”). It is well established that “a direction to pay without a designation of the source of funds is not an appropriation.” … The inverse is also true: the designation of a source, without a specific direction to pay, is not an appropriation. … Both are required. An appropriation act, “like any other statute, [must be] passed by both Houses of Congress and either signed by the President or enacted over apresidential veto.”

Appropriations come in many forms. A “permanent” or “continuing” appropriation, once enacted, makes funds available indefinitely for their specified purpose; no further action by Congress is needed. … A “current appropriation,” by contrast, allows an agency to obligate funds only in the year or years for which they are appropriated. … Current appropriations often give a particular agency, program, or function its spending cap and thus constrain what that agency, program, or function may do in the relevant year(s). Most current appropriations are adopted on an annual basis and must be re-authorized for each fiscal year. Such appropriations are an integral part of our constitutional checks and balances, insofar as they tie the Executive Branch to the Legislative Branch via purse strings.

And she concluded:

Paying out Section 1402 reimbursements without an appropriation thus violates the Constitution. Congress authorized reduced cost sharing but did not appropriate monies for it, in the FY 2014 budget or since. Congress is the only source for such an appropriation, and no public money can be spent without one. See U.S. Constitution, Art. I, § 9, cl. 7 …

The Court will grant summary judgment to the House of Representatives and enter judgment in its favor. The Court will also enjoin any further reimbursements under Section 1402 until a valid appropriation is in place. However, the Court will stay its injunction pending any appeal by the parties. A memorializing Order accompanies this Opinion.

There will undoubtedly be an appeal, so there is a long way to go before we have a clear resolution of the issue. But if the final resolution is similar to the present judgment, the question of the recovery of the unauthorised reimbursements will have to be faced – no doubt, I will have to add to my series of posts on the Restitution to the Executive and the recovery of unauthorised State payments by considering whether US provides for a claim to restitution of unjust enrichment, because the recipients of the unauthorised payment have been unjustly enriched at the expense of the State.

Workplace surveillance, conditions of employment, and privacy

Surveillance widgets, by Chris Slane

The Hawthorne effect is alive and well, and living in the interstices between private law and privacy law. In particular, I recently saw the following clause in a contract (the names have been changed to protect the innocent, the guilty, bystanders, and anyone else involved ):

WORKPLACE SURVEILLANCE
The employer’s workplaces are subject to overt workplace surveillance. You agree that you consent to this surveillance which is primarily to ensure the safety and security of the employer’s workplaces and the appropriate use of the employer’s resources. The overt surveillance is in the form of computer, internet usage and camera surveillance and is of an ongoing and continuous nature, in accordance with the employer’s relevant policies as amended from time to time.

This surveillance is carried out by all means available to the employer, which may include accessing your email account; accessing your files; accessing your computer or other electronic devices and recording internet usage by you including remote access internet usage and accessing those records.

The Citizens Information website has a lot of information on the legitimate scope of surveillance in the workplace, and the Data Protection Commissioner has issued Guidance Notes on the Monitoring of Staff, which emphasises that

monitoring, including employees’ email or internet usage, surveillance by camera, video cameras or location data must comply with the transparency requirements of data protection law. Staff must be informed of the existence of the surveillance, and also the purposes for which personal data are to be processed. If CCTV cameras are in operation, and public access is allowed, a notice to that effect should be displayed. Any monitoring must be carried out in the least intrusive way possible. Only in exceptional circumstances associated with a criminal investigation, and in consultation with the Gardai, should resort be made to covert surveillance.

The leading case is probably B?rbulescu v Romania 61496/08 [2016] ECHR 61 (12 January 2016), in which the European Court of Human Rights held that there had been no violation of Article 8 when the applicant had been dismissed by his employer, a private company, for having used the company’s internet facilities for personal purposes during working hours in breach of internal regulations. The employer had monitored the applicant’s Yahoo Messenger communications, so the Court held that the applicant’s Article 8 rights relating to his “private life” and “correspondence” had been engaged, but that they had not been infringed:

56. The Court notes that the applicant was able to raise his arguments related to the alleged breach of his private life and correspondence by his employer before the domestic courts. It further notes that they duly examined his arguments and found that the employer had acted in the context of the disciplinary powers provided for by the Labour Code … The domestic courts also found that the applicant had used Yahoo Messenger on the company’s computer and that he had done so during working hours; his disciplinary breach was thus established …

57. In this context, the Court notes that both the County Court and the Court of Appeal attached particular importance to the fact that the employer had accessed the applicant’s Yahoo Messenger account in the belief that it had contained professional messages, since the latter had initially claimed that he had used it in order to advise clients …

59. While it is true that it had not been claimed that the applicant had caused actual damage to his employer … the Court finds that it is not unreasonable for an employer to want to verify that the employees are completing their professional tasks during working hours.

60. In addition, the Court notes that it appears that the communications on his Yahoo Messenger account were examined, but not the other data and documents that were stored on his computer. It therefore finds that the employer’s monitoring was limited in scope and proportionate …

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Welcome

Me in a hatHi there! Thanks for dropping by. I'm Eoin O'Dell, and this is my blog: Cearta.ie - the Irish for rights.

"Cearta" really is the Irish word for rights, so the title provides a good sense of the scope of this blog.

In general, I write here about private law, free speech, and cyber law; and, in particular, I write about Irish law and education policy.

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