In The State (Lynch) v Cooney [1982] IR 337, the Supreme Court upheld the validity of a statutory provision [section 31(1) of the Broadcasting (Authority) Act, 1960 (also here) as amended by section 16 of the Broadcasting Authority (Amendment) Act, 1976 (also here) - thankfully repealed in 2001] which allowed the Minister to preclude from broadcast any matter which “would be likely to promote, or incite to, crime or would tend to undermine the authority of the State”. O’Higgins CJ for the Court held that the free speech guarantee [Article 40.6.1(i)] of the Constitution

enables the State, in certain instances, to control these rights and freedoms. The basis for any attempt at control must be, according to the Constitution, the overriding considerations of public order and morality. The constitutional provision in question refers to organs of public opinion and these must be held to include television as well as radio. It places upon the State the obligation to ensure that these organs of public opinion shall not be used to undermine public order or public morality or the authority of the State. It follows that the use of such organs of opinion for the purpose of securing or advocating support for organisations which seek by violence to overthrow the State or its institutions is a use which is prohibited by the Constitution. Therefore, it is clearly the duty of the State to intervene to prevent broadcasts on radio or television which are aimed at such a result or which in any way would be likely to have the effect of promoting or inciting to crime or endangering the authority of the State.

A subsequent challenge to the section on the grounds that it was contrary to Article 10 of the European Convention on Human Rights was rejected in 15404/89 Purcell v Ireland (Decision of 16 April 1991). Moreover, the House of Lords in R v Secretary of State for the Home Department, ex p Brind [1991] 1 AC 696, [1991] UKHL 4 (07 February 1991) sustained a similar ban; and an Article 10 challenge subsequently shared Purcell’s fate (see 8714/91 Brind v UK (Decision of 9 May 1994)).

I was reminded of this today reading an article by Joanne Mariner (Terrorism and Counterterrorism Program Director at Human Rights Watch (HRW)) on Findlaw’s Writ column. Her article is called “Terrorism and Speech”. Read the rest of this entry »

According to Sharon E. Herbert’s superb ghosts in the machine blog:

January 28th is Data Privacy Day

The IAPP (International Association of Privacy Professionals) has declared January 28, 2008 “Data Privacy Day”, in an effort to encourage privacy professionals to give presentations at schools, colleges and universities next week on the importance of privacy.

To assist privacy professionals in their goal, the IAPP is providing some free materials, including a slideshow and handouts on teens and social networking: worthwhile reading for many parents too!

If you’re a privacy professional, educator or just concerened about privacy awareness, you may want to consider using these for your own presentation or as a springboard for discussion.

Read the rest of this entry »

Required reading for anyone who reads this blog:

Susan P. Crawford The Internet and the Project of Communications Law 55 UCLA L Rev 359 (2007) (pdf)

Abstract: The Internet offers the potential for economic growth stemming from online human communications. But recent industry and government actions have disfavored these possibilities by treating the Internet like a content-delivery supply chain. This Article recommends that the Internet be at the center of communications policy. It criticizes the nearly exclusive focus of communications policy on the private economic success of infrastructure and application providers, and suggests that communications policy be focused on facilitating communications themselves.

Read the rest of this entry »

There is a certain irony that, on Holocaust Memorial Day (on which I have blogged here), today’s Sunday Business Post reports that Jean-Marie le Pen, leader of the far right wing French party Le Front National, has delayed his trip to Ireland due to media coverage of the invitation extended by the UCD Law Society to him to speak against the Lisbon Treaty. As a contentious politician who seems to thrive on the publicity generated by controversy, I am sure he expected some objections, but it seemed to me that neither the reaction nor the coverage was particularly virulent. Read the rest of this entry »

There has been much debate of late over on Law School Innovation arising out of the American Association of Law Schools‘ recent annual conference on the theme of Reassessing our Role as Scholars and Educators in Light of Change. The LSI debate has been focussed in particular on the Plenary Session on Rethinking Legal Education for the 21st Century (see eg, here (including mp3 of the session) and here), which covered similar issues to those raised in my recent post Legal Education, again. To take one example, there was an interesting discussion of the Carneige Foundation’s report on Educating Lawyers: Preparation for the Profession of Law (which I have discussed on this blog). Again Douglas Berman has proposed a hierarchy of goals for law school instruction and serving students:

Law school instruction and serving students should be focused on…

5. helping students pass the bar

4. helping students get better grades

3. helping students learn doctrines and skills needed to be competent lawyers

2. helping students develop insights and abilities needed to be outstanding lawyers

1. helping students enhance talents and options needed to be flourishing professionals.

I’m not convinced that this list would apply without modification in a non-US law school. In the US, students do an undergraduate degree (in arts or science), then study law in graduate school, and finally take a summer crammer course to sit the bar exam(s) of the state(s) in which they wish to practice. In that schedule, many of the broad benefits of a university education can and will be supplied by the initial undergraduate degree, and it is right that a law school should focus on the less intangible and more instrumental goals of helping students to become lawyers. On the other hand, outside the US, students typically study law as an undergraduate subject, and then go to do a further, professional, course to qualify for practice. In this schedule, the university law school must not lose sight of the fact that their degrees will be their students’ source for the general if more intangible benefits of a third level education, and that many of the instrumental goals of legal education will – or at least ought to be – provided in the subsequent professional course. This is not to say that there is no room for practical matters in a university law school (or, for that matter, pace Bruce Boyden on Concurring Opinions, for academic matters on a professional course); I have argued in a recent post that the university needs to have room for both approaches. My point is merely that I would be slow to subscribe to a hierarchy like Douglas’s which seems to me to be too focussed on the instrumental benefits of Law School and insufficiently directed to the general educational benefits of university education. Of course, this in turn raises the question of what a similar heirachy in a non-US – or at least, Irish – law school might look like. I will think on this and return to the issue at a later date, but I leave it now as an exercise for you, gentle reader(s), likewise to think, and perhaps to make suggestions in the comments below.

Part V of the Solicitors (Amendment) Act, 1994 (also here) governs qualifying for admission as a solicitor in Ireland. Amending section 24 of the Solicitors Act, 1954 (also here), section 40 of the 1994 Act provides that

a person shall not be admitted as a solicitor unless
…
(e) he has satisfied the Society [ie, the Law Society of Ireland] that he is a fit and proper person to be admitted as a solicitor.

In the Australian state of Victoria, the equivalent legislation [section 1.2.6 of the Legal Profession Act, 2004] requires that the person be “currently of good fame and character”. Moreover, in both Ireland and Vitoria, there is elaborate machinery to strike a solicitor off for alleged misconduct. I learn from The Legal Soapbox (an entertaining Australian blawg, and one of my favourites) that the Victoria provisions have recently featured in case which is a cautionary tale for all students wishing one day to be admitted to practice as solicitors. Read the rest of this entry »

The Faculty of Law, University College Cork hosted the second annual Legal Education Symposium on Friday 7 December last (I blogged about it here and here). Now comes news that the video of the event has just been made available here. Last week, I mentioned that Daithí had pointed out (in a post I wished I’d written) that the UCC Law Faculty is very much to the forefront in online law matters, and making video of their events available online is just one example of their leadership in this important area.

Bonus link no 1: If you scroll to near the bottom of the video page, you will find an older video of me discussing the (benighted) Defamation Bill (not yet enacted, but on its way through the Seanad for the second time, and I hold out hope that the long wait will soon – well, soonish, but finally and eventually – be over!).

Bonus link no 2: There is an important debate right now in the US blogs about the importance of interdisciplinary legal scholarship. Important contributions are here (most recent at the time of writing of this post), here (excellent roundup with links), here (a common sense contribution with which I mostly agree, for many of these reasons) and here & here (the posts that sparked this round of commentary). The basic question of how much the legal academy should in principle focus on preparing students for practice as against more abstract legal issues driven by research agendas often turning on interdisciplinary approaches is a universal one, as important in Ireland as it is in the US, which makes this debate so fascinating. Of course, the relationship between the academy and the legal profession, and the mission of the law school in the university, will differ in their detail between the two jurisdictions, but the principles are sufficiently similar to make the debate very relevant indeed. My own tuppence-worth? We need both approaches – on the one hand, law schools must recognise the reality that many of our graduates go on to practice (this is more true in the US than in Ireland), and take this into account in constructing syllabi; on the other hand, the legal profession must recognise that there is more to a university law school than simply vocational training for practice, and that university research and research-driven – often interdisciplinary – teaching are valuable not merely instrumentally as providing potential tools in the toolkit of the practitioner but also in their own right. The problem is not so much in stating this balance as recognising it and striking it, and the US discussion provides an insight into how a jurisdiction which has recognised this issue is actively and openly reflecting on the best way to strike just such a balance.

In Phonographic Performance Ltd v Cody [1994] 2 ILRM 241, 247 (emphasis added), Keane J held that:

Section 60(4) of the Act of 1963 [ie, the Copyright Act, 1963; see now section 77(4) of the Copyright and Related Rights Act, 2000] provides that no right in the nature of copyright ‘shall subsist otherwise than by virtue of this Act or of some other enactment in that behalf’. The right of the creator of literary, dramatic, musical or artistic work not to have his or her creation stolen or plagiarised is a right of private property within the meaning of Articles 40.3.2 and 43.1 of the Constitution, as is the similar right of a person who has employed his or her technical skills and/or capital in the sound recording of a musical work. As such, they can hardly be abolished in their entirety, although it was doubtless within the competence of the Oireachtas to regulate their exercise in the interests of the common good. In addition and even in the absence of any statutory machinery, it is the duty of the organs of the State, including the Courts, to ensure, as best they may, that these rights are protected from unjust attack, and in the case of injustice done, vindicated. The statements in some English authorities that copyright other than by statutory provision ceased to exist with the abolition of common law copyright are not necessarily applicable in Ireland.

If this is an application of the much debated natural rights/labour desert theory of property to the copyright context (associated, for example, with Millar v Taylor (1769) 4 Burr 2303; 98 ER 201), then there many problems with this approach. The natural law approach to copyright was repudiated in Donaldson v Beckett (1774) 98 ER 257; 4 Burr 2408, and therefore could not have survived into the modern Irish constitutional order. Of course, on a natural rights view of the Irish Constitution, then the Article 40.3/43 view of property can be seen as predating the Constitution and embodying the natural rights approach to copyright. This in turn raises the legitimacy of such a view, and a post last Friday on the Patry Copyright Blog (returning to an issue about which he has blogged in the past) about The Natural Rights Issue is very much on point [with additional links]: Read the rest of this entry »