the Irish for rights

What are the constitutional issues facing the regulation of media ownership in Ireland?

A just-published Element of Media Report CoverReport on the Concentration of Media Ownership in Ireland (download pdfs here and here) directly addresses the question in the title to this post: what are the constitutional issues facing the regulation of media ownership in Ireland. The Report concludes that such issue do not prevent government action here, and calls on the Irish government to tackle Denis O’Brien’s media control. It seems that some media are ignoring it. That is a pity. It is a very important Report. It was commissioned by Lynn Boylan MEP on behalf of the European United Left/Nordic Green Left (GUE/NGL) group of the European Parliament, and was prepared by Caoilfhionn Gallagher and Jonathan Price, barristers in Doughty Street Chambers, London, and Gavin Booth and Darragh Mackin, of the Belfast solicitors’ firm KRW Law. It was launched in Leipzig (panel | photo) on 6 October last, and in Dublin last night (press notice | photos).

Here’s a flavour of the Report, from the executive summary [with added links to relevant posts on this site]:

1.8 In our view, taken together, the combination of the highly concentrated Irish media market, Mr. O’Brien’s threats and initiation of a large number of legal proceedings against media and other critics, and serious shortcomings in the defamation framework create a perfect storm which threatens news plurality and undermines the media’s ability to perform its watchdog function. … We strongly recommend that these concerns be addressed as a matter of urgency, and be seen to be addressed.

1.13 The Report’s authors are aware of suggestions that there are legal bars to any such action being taken, but we reject any suggestion that it is not legally permissible to address the status quo and that tackling the current concentration of media ownership is impossible given the importance of property rights in the Irish Constitution and/ or the European Convention on Human Rights (“ECHR”). On the contrary, our conclusion is that there is, in principle, no such legal bar. A retrospective mechanism could indeed be permissible under the Irish Constitution, EU law, and the ECHR. …

1.14 However, whilst this matter of principle is clear, there remain complex and nuanced issues to consider. The devil is very much in the detail, and these are difficult issues. What is now needed is a careful review of the detail, and, accordingly, the Report recommends that the Government establish a cross-disciplinary Commission of Inquiry. This Commission should examine the issues closely and make concrete recommendations, within a tight timeframe. [emphasis added; see also para 6.6]

This is an important call, which I hope the government will heed, but I won’t hold my breath.

As to the detail of the legal analysis in the Report, chapter 2 discusses relevant international legal standards concerning media plurality and ownership concentration; chapter 3 assess the landscape of media ownership in Ireland; chapter 4 discusses the Competition and Consumer Protection Act 2014 (also here); and chapter 5 discusses legal barriers to addressing current media concentration. As to the 2014 Act, it established the Competition and Consumer Protection Commission (CCPC) and introduced a new media mergers system, which the Report addresses. All such mergers must be notified to the Minister for Communications, Climate Act and the Environment, the CCPC, and the EU Commission, and are subject not only to a competition law review by the CCPC but also to a media plurality review by the Minister. The Report observes that the powers of the Minister are “permissive”([4.4]), the Minister may prohibit a media merger on plurality grounds, but it is not mandatory in any circumstances.

As to the constitutional barriers to addressing media concentration, the Report addresses the school of thought that no retroactive step could be taken which would alter current media ownership concentration due to the protection of property under Irish Constitutional law, the ECHR or EU law. Here, the Report pulls no punches. It asserts

5.2 In principle, there is no such bar …

5.4 There is nothing in either Article 40.3.2? or Article 43 [of the Constitution] which prevents action being taken in relation to the concentration of media ownership. This is a jurisprudential red herring.

The Report likewise concludes that there is nothing in theprotection of property rights in Article 1 of Protocol 1 to the European Convention on Human Rights to prevent such action.

I agree, but I think there is more to be said about the issue than is said in the Report. The constitutional protection of property is indeed a “qualified right” ([5.4]) which may be regulated by the principles of social justice (Art 43.2.1) and reconciled with the exigencies of the common good (Art 43.2.1), but the key point is that expropriation of property on such a basis is usually justifiable provided that appropriate compensation is paid. The Report mentions this ([5.5]; referring to Fisher v Irish Land Commission [1948] IR 3]), but does not explore its ramifications for actions to alter current media ownership concentration in Ireland.

In In re Article 26 and the Planning and Development Bill, 1999 [2000] 2 IR 321, [2001] 1 ILRM 81, [2000] IESC 20 (28 August 2000) the Supreme Court held that the use of planning legislation to provide social and affordable housing was within the competence of the Oireachtas to attain, and that the provisions in question impaired property rights as little as possible and was proportionate to the legitimate objectives. This would plainly mean that restrictions on media ownership, such as those in the 2014 Act mentioned above, could be constitutionally defended.

However, more problematic is the suggestion that existing ownership could be retrospectively affected. In In re Article 26 and the Health (Amendment) (No 2) Bill 2004 [2005] 1 IR 105, [2005] IESC 7 (16 February 2005) the Supreme Court held that the retrospective expropriation of a property right (here a right to unlawfully imposed health charges) was unconstitutional. Murray CJ observed

117 An important part of the analysis of justification for interference with constitutional property rights is the question of compensation. … [As] Keane CJ [said] in The Planning and Development Bill [reference] [2000] 2 IR 321, 352:

There can be no doubt that a person who is compulsorily deprived of his or her property in the interests of the common good should normally be fully compensated at a level equivalent to at least the market value of the acquired property.

118 … where an Act of the Oireachtas interferes with a property right, the presence or absence of compensation is generally a material consideration when deciding whether that interference is justified pursuant to Article 43 or whether it constitutes an “unjust attack” on those rights. In practice, substantial encroachment on rights, without compensation, will rarely be justified.

Hence, for it to be constitutionally permissible for ownership of a media company to be compulsorily divested or exprorpriated, the affected owner would have be compensated. It is vanishingly rare that the principles of social justice and the exigencies of the common good can justify an expropriation without compensation (on which, contrast O’Callaghan v Commissioners of Public Works [1985] ILRM 364 with In re Article 26 and the Employment Equality Bill, 1996 [1997] 2 IR 321, [1997] IESC 6 (15 May 1997)). In reality, any attempt to divest or expropriate some of Denis O’Brien’s media holdings would likely trigger a compensation bill that could run into hundreds of millions of euro. It may be that when politicians say there are constitutional problems with such a divestiture or expropriation, they don’t mean that the constitution prevents it so much as that the constitution means that it would be unaffordable. Nor would Denis O’Brien, or any other affected media owner, give in without a fight; there would be a pitched legal battle, all the way to the Supreme Court, to settle the legal questions about the competence of the Oireachtas to legislate and the legitimacy of its objectives, whether the legislative provisions in question impaired property rights as little as possible and were proportionate to the legitimate objectives, and how much the compensation ought to be. References to constitutional problems may therefore also be a useful excuse for politicians unwilling to pick such a fight. In the long run, it is one worth picking, but it may very well be the long run before it is picked.

Privacy Paradigm – getting the design right

ODell@ICS2 I spoke today at the (ISC)² Security Congress EMEA in Dublin. Before me, Minister Naughten gave an opening address; after me, Brian Honan provided a fascinating keynote.

In between, I beat the drum (again) for Privacy Paradigm. The image, left, is an artist’s impression of the highlights of my talk. If you click through, you will get a bigger version, and – as a bonus, on the same sheet – the same artist’s impression of the talks from Brian and the Minister as well.

What I am hoping to do with Privacy Paradigm (if anyone wants to fund the research) is provide a simple means by which websites could signal not only that they respect their visitors’ privacy but also how (if at all) the sites processe personal data. For this, by analogy with Creative Commons, I suggest an appropriate icon and short accompanying text which explains that the site operates under a standard-form privacy policy, with a link to the underlying privacy policy, provided by an appropriately coded plugin. In my view, the key is to start with the standard-form privacy policies, and to code them accordingly, and then to provide the icons.

There have been many previous attempts covering some elements of this strategy, but none has caught on. This is in part because they have been partial (not replicating the full depth of the Creative Commons precendent), in part because they started with the icons and didn’t get much further, and in part because the icons haven’t been great (either too many, nor not intuitive, or not connected with underlying privacy policies). The image at the top is very good, and it emphasises for me that, although the icons should probably come near the end of the process, they need to be good – clear, intuitive and few in number. If they work, then Privacy Paradigm will be able to live up to its slogan of “respecting privacy online”.

The Global Futures of Unjust Enrichment, 21-22 April 2017

Goff&JonesA conference on the theme of the Global Futures of Unjust Enrichment will be held on Friday 21 April 2017 and Saturday 22 April 2017 in the UCL Gustave Tuck Theatre, Wilkins Building, Gower Street, London WC1 (map here).

The Bentham House Conference 2017 celebrates the publication of the 50th anniversary edition of Goff & Jones: The Law of Unjust Enrichment, and honours the memory of the book’s first authors, Lord Goff of Chieveley and Professor Gareth Jones, who both died in 2016. The conference brings together leading scholars from around the world to consider the future of unjust enrichment in overseas jurisdictions, and to discuss current problems and controversies in English law.

The emergence of the law of unjust enrichment as a distinct part of the law of obligations was the most important and radical development in English private law of the last hundred years. Academic writing played a significant role in this development, and most significant of all was Robert Goff and Gareth Jones’s seminal work on the topic in 1966. The speakers paying tribute to Goff and Jones are a veritable who’s-who of contemporary private law. On Friday 21 April 2017, they will discuss the future trajectory of the law of unjust enrichment in overseas jurisdictions; and on Saturday 22 April 2017, they will consider a series of important issues which have been thrown up by the English case law over the past decade, and which will require significant further attention from the courts.

The conference has been convened by Professor Charles Mitchell (UCL), Professor Paul Mitchell (UCL) and Dr Stephen Watterson (Cambridge). More information about the conference, including the draft conference programme, speaker biographies, and booking, is available here.

Exhausting exhaustion – the limits of the first sale doctrine in EU copyright law

ExhaustionThe exhaustion of intellectual property [IP] rights by the first sale of the protected work is a fundamental principle of IP law. Where a work or product covered by an IP right is sold by the rightholder, that IP right is exhausted in the sense that it can no longer be exercised by the rightholder to prevent the purchaser from selling or lending the work or product to a third party. For example, Article 4(2) of the Software Directive (Directive 2009/24/EC) provides

The first sale in the Community of a copy of a program by the rightholder or with his consent shall exhaust the distribution right within the Community of that copy, …

Article 4(2) of the InfoSoc Directive (Directive 2001/29/EC) is in similar terms. In Case C-166/15 Ranks and Vasilevics, the Court of Justice of the European Union [CJEU] explored the limits of this rule, and established the point at which the exhaustion doctrine is itself exhausted. As to the rule, the CJEU held:

The holder of the copyright in a computer program who has sold, in the EU, a copy of that program on a material medium (such as a CD-ROM or a DVD-ROM) with an unlimited user licence can no longer oppose the subsequent resale of that copy by the initial acquirer or subsequent acquirers of that copy, notwithstanding the existence of contractual terms prohibiting any further transfer.

Read more

Preserving the Consistency and Integrity of the EU Acquis Relating to Content Monitoring

EU data monitoringI am a signatory to the following:

Open Letter to the European Commission – On the Importance of Preserving the Consistency and Integrity of the EU Acquis Relating to Content Monitoring within the Information Society

Recent developments, starting with the Communication on Online Platforms and the Digital Single Market Opportunities and Challenges for Europe released on 25/05/2016, followed by a series of proposals (Proposal for a Directive amending the Audiovisual Media Services Directive, Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market) and soft law initiatives (the EU Internet Forum against Terrorism and the Code of Conduct on Countering Illegal Hate Speech Online) seriously put at risk the consistency and integrity of the EU acquis related to the information society.

A key component of this acquis is the prohibition of general monitoring obligations to the benefit of providers of intermediary services. It is a means to achieve at least two central objectives: the encouragement of innovation as well as the protection of fundamental rights of all Internet users, namely the rights protected by Articles 8 and 11 of the European Convention of Human Rights. Yet, the proposed Copyright Directive, in particular, seems to negatively affect both the domain and effect of Article 15 of the E-Commerce Directive. The signatories of this open letter therefore urge the European Commission to take into account the human rights dimension of Article 15 of the E-Commerce Directive, as made explicit by the Court of the Justice of the European Union, and to make sure its implications are carefully examined across sectors.

There are blogposts by other signatories are here (Eleonora Rosati on IPkat) and here (Sophie Stalla-Bourdillon on peep beep!); and the letter can be downloaded here.

Dearer to us than a host of truths is an exalting illusion? EU Data Transfer Regulation after Schrems

Kuner & FennellyMy favourite Steve Jobs aphorism (and there are so many from which to choose) is

People who know what they’re talking about don’t need PowerPoint.

(see Steve Jobs by Walter Isaacson (Simon and Schuster, 2011) 337). Last Thursday, Chris Kuner elevated this from apothegm to axiom, resoundingly proving the truth of that insight, by providing a masterclass in compelling presentation without resort to the crutch of powerpoint or similar slides. Chris is pictured above left, chatting with David Fennelly, before delivering a powerful lecture on “Reality and Illusion in EU Data Transfer Regulation” in the light of the decision of the Court of Justice of the European Union in Case C-362/14 Schrems v Data Protection Commissioner [2015] ECR I-nyr (Grand Chamber, 6 October 2015) to a rapt audience in Trinity College Dublin. He began with a quote from Chekov:

Dearer to us than a host of truths is an exalting illusion.

This is from Chekov’s short story “Gooseberries” (see Richard Pevear and Larissa Volokhonsky (tr) Selected Stories of Anton Chekov (Random House, 2009) 311 at 317), where the Nikolai is deluding himself that his gooseberries – actually “hard and sour” – are in fact the succulent and luscious fruit which he had always dreamed of growing. So it is, Chris argued, with EU regulation of trans-border data flows, which is at present an exalting illusion running up against a host of political realities.

In Schrems, the CJEU held that national data protection authorities [DPAs] could independently make decisions on the adequacy of data protection regimes in countries to which EU data is exported, notwithstanding a Commission decision on such adequacy, and that the Commission Safe Harbour decision on the adequacy of the US data protection regime was invalid. Four themes can be discerned in the judgment. First, there is a strong affirmation of the right to data protection under the EU Charter of Fundamental Rights, building on the prior judgments in Joined Cases C-293/12 and C-594/12 Digital Rights Ireland and Seitlinger (Grand Chamber, 8 April 2014) [and Case C-131/12 Google Spain (Grand Chamber, 13 May 2014)]. Second, EU data protection standards – and in particular, the Charter – apply to transfers to third countries. Third, the CJEU elevated the role of independent national DPAs (especially as against the EU Commission) and empowered individuals to complain to such DPAs. And, fourth, the CJEU held that the “adequate level protection” of international transfers of data required by EU law is equivalent to the level of data protection provided by EU law – Chris stressed that “equivalent” here is not necessarily “identical”, but that this is still a high bar.

The impact of the CJEU decision in Schrems goes far beyond the context of the invalid safe harbour. Chris gave four examples. Read more

GradLink in TCD Law School

TCD logoHere in Trinity College Dublin, the GradLink Mentoring Programme aims to develop current students’ knowledge of the labour market and career paths, through nurturing career learning relationships with alumni mentors working in a range of career areas. The School of Law is participating in this year’s programme, connecting third year (Junior Sophister) students with graduates of the School who have kindly agreed to act as mentors, to pass on pass on knowledge and experience, and offer advice, guidance and information to our students on issues relating to their career and professional development. There are guidelines for mentors and students here (pdf). One past student said:

I very much enjoyed the GradLink Mentoring Programme as it gave me the chance to get advice from someone with experience in the field I wish to work in. It was invaluable to be able to take the time once a month to remove myself from thinking purely about college to think about my future and where I want to go. The wide range of advice my mentor gave me will definitely be helpful when I am looking for employment and the experience gave me confidence that people can find work in my area of qualification.

The School is privileged to have an excellent group of mentors who have carved out successful careers both in the legal profession (barristers, solicitors, in-house lawyers, government lawyers) and beyond (in business, media, government and so on). One past mentor said:

I really enjoyed participating in the GradLink programme. I was assigned three students, who were all fantastic and very engaged. It was great to be involved in this way with Trinity and nice to feel like I am giving back in some ways.

For this year’s students, there will be a launch event on Wednesday of next week, 12 October 2016, at 6:30pm in the Trinity Long Room Hub.. At the event, students will have the opportunity to meet mentors, who will briefly introduce themselves and their sector of employment, job role, or specialism. The deadline for interested students to register for a place is Monday of next week, 10 October 2016.

Free speech for Trump but nobody else? Let’s see what Denis O’Brien might have to say about that

O'Brien & Trump

Denis O’Brien and Donald Trump (via Flickr)

Denis O’Brien (above left) and Donald Trump (above right) are classic crybullies: they cry in public when criticised, whilst bullying others – claiming to be victims, whilst intimating their critics. So, Denis O’Brien (among the 21 Irish lawsuits initiated by him since 2010) seeks to sue the Oireachtas for a TD’s speech about some of his business dealings, to to redact RTÉ’s publication of the same material, and to sue a PR firm for conspiracy and defamation, all the while claiming never to have experienced the level of abuse, venom and hatred resulting from taking a stand to protect privacy in relation to his financial affairs. Donald Trump is notorious for his cheap personal attacks, on the parents of a Muslim American soldier killed by a suicide bomber in Iraq, on a former Miss Universe, and a judge who is hearing a fraud case against his defunct university, all the while decrying media criticism and threatening to change the law to weaken the First Amendment and muzzle the press.

The sanctimonious hypocricy at the heart of this strategy is egregious. The First Amendment, against which Trump inveighs when it is used against him, is the very thing on which Trump relies when he harangues everybody else. The First Amendment standard which allows him to criticise Hilary Clinton (see New York Times v Sullivan 376 US 254 (1964)) is the same standard which allows him to criticise judges (Garrison v Louisiana 379 US 64 (1964)) and it is the same standard that allows the New York Times to criticise his tax affairs. If he changes the Sullivan standard so that the New York Times can’t do that, then he changes the standard that protects his own incoherent fulminations.

Of course, Trump won’t be able to change the Sullivan standard; it is too well entrenched in the jurisprudence of the US Supreme Court for that (see Hustler Magazine v Falwell 485 US 46 (1988) 52 (Rhenquist CJ); but cf the views of the late Scalia J). So, instead, Trump is working in other ways to curb the media and undermine the First Amendment – and if this sabotages Sullivan and leads to its reversal, so much the better: “when the New York Times or the Washington Post writes a hit piece, we can sue them”. But, even without a change in the law, his celebrity and alleged personal resources mean that he can wage war against media organizations he doesn’t like. For example, the day after Gawker.com conceded defeat in the face of billionaire Peter Thiel’s determined (and long-secret) war against it, Trump’s wife has taken to the fight, using Thiel’s law firm to over allegations about her immigration status when she first went to the US. This is just straightforward bullying by Trump, Theil and their ilk, using their fortunes to intimidate the media.

Meanwhile, Trump’s crying also continues. In the sort of personal attack that he would sue over, Trump’s latest assault is on Irish businessman Denis O’Brien, and his association with the Clintons. Trump makes the kind of allegations that have in the past seen O’Brien reach for his lawyers. O’Brien is keeping his counsel at the moment, but if he remains true to form and responds with a lawsuit, then where he launches it will have a large bearing on the outcome. If he sues in Ireland, his damages will be limited; and, however much they might be, they would not in any event be recoverable in the US. If he sues in the US, Trump will smugly wrap himself in the US flag and the First Amendment; but it would be interesting to see Trump’s own bullying tactics used against him; and he may find that he has bitten off more than he can chew on this one. The whole episode neatly illustrates Trump’s foul-smelling hypocrisy and crybullying forked tongue – hiding behind the First Amendment to assail the Clintons via O’Brien, taking advantage of the media coverage his onslaught has generated, but yet threatening the media when he doesn’t like what they say, seeking to hold them to higher standards than he holds himself. He should take a deep breath and a long look in the mirror, thank his lucky stars for the US Constitution (even if he doesn’t know what it says), and leave the First Amendment alone. As for O’Brien, if he does sue Trump, at least this time he’ll be taking on someone his own size. But, otherwise, he too should take a deep breath and a long look in the mirror, thank his lucky stars for the Irish Constitution (even if he too doesn’t know what it says), and leave its free speech provisions alone.

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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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I had built a blogroll here on my Google Reader RSS subscriptions. Google Reader produced a line of html for each RSS subscription category, each of which I pasted here. So I had a list of my subscriptions as my blogroll, organised by category, which updated whenever I edited Google Reader. Easy peasy. However, with the sad and unnecessary demise of that product, so also went this blogroll. Please take a moment to mourn Google Reader. If there's an RSS reader which provides a line of html for the list of subscriptions, or for each RSS subscription category as Google Reader did, I'd happily use that. So, as I've already begged, I'd love a recommendation, if you have one.

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