Tory Island is a small island of striking natural beauty off the northwest coast of Co Donegal. So, film-maker Neville Presho must have thought himself a lucky man to have a holiday home there. Until one day he returned to the island, and found that the house was gone, replaced by car park for an adjacent hotel (Irish Emigrant | Irish Independent | Irish Times | Kerryman | RTE | Soft Irish Rain). In an ongoing High Court action, Mr Presho’s claim against the hotel in respect of the demolition of the house failed, but Mr Justice Murphy suggested that there may be a restitution claim for the hotel’s use of the site as a car park. Tim Healy’s story in yesterday’s Irish Independent explains the restitution claim:

Hotelier in car park row faces order over damages

Holiday home ‘vanished’ while owner was absent

A Tory Island hotelier who built a car park on the remains of a 150-year-old holiday home which burnt down may have to pay damages to its former owner. A High Court judge who is presiding over a legal row over a holiday home which allegedly “disappeared” and became a car park for an adjoining hotel yesterday said the case may be dealt with on the basis of unjust enrichment by the hotel. This requires someone who has obtained a benefit at the expense of another, without a legal justification, to provide compensation or restitution for their loss. … Mr Justice Roderick Murphy said yesterday Mr Presho had not succeeded in proving the cause of the damage, but he (judge) was finding that, notwithstanding this, there may be a case against the hotel for unjust enrichment.

The judge said he wanted to hear submissions on this before he would give a final judgment and he adjourned the matter to next May. … He said it was clear the hotel had benefited from the demolition of the house and the clearing of the rubble which was left over. … He said he would, as part of submissions on the issue of unjust enrichment, invite the parties to deal with any award of damages that may follow. .. Mr Presho told the court the case was not about retribution but “about restitution.”

Damages for trespass to land are usually measured by the market value of the unauthorized use, that is to say, the going rent (where the trespasser is an overholding tenant, such damages are called mesne profits). And there is a discussion in the cases as to whether such damages should be characterised as compensatory or restitutionary (on restitutionary damages, see in particular the work of Edelman and Giglio, and the Law Reform Commission’s Consultation Paper [esp Chapter 6] and Report on Damages [esp Chapter 8]). This measure is controversial, especially as a matter of Irish law, so we can at least hope that any decision by Murphy J in this case will bring some certainty to the area.

On Slaw, Michael Lines lauds a presentation by Paul Holdengraber, Director of the Public Education Program at the New York Public Library:

Yesterday’s Keynote was probably one of the best talks on any topic I have ever heard. Inspiring, elevating, and hilarious, Paul Holdengraber delivered a wonderful message about reading, conversation, and libraries that has to be seen to be appreciated. Have a look at it here …

It’s wonderful, a rousing and triumphant vindication of libraries everywhere (even though the server seems to be picky about whether it will let you view it). Unfortunately, the powers that be don’t seem to see libraries in these terms. Rachel Cooke – journalist with the Observer and Guardian – has been blogging and writing about luddite UK policy relating to libraries:

If those of us who love books, and libraries, and believe they are a vital, beautiful and cherishable part of our cultural and social heritage, take our eye off the ball now, we will regret it. We must make a fuss, and we must name and shame those who are set on destruction.

Her colleague John Cooke is similarly concerned. There do not seem to be similar threats here, but let’s see what next Tuesday’s budget brings.

I wonder whether anyone has suggested that Conor Casby’s caricatures of Cowen constitute a seditious libel? It’s not that fanciful a question: the common law crime still exists, and has been used against milder criticism. But the mere fact that the question can be asked in this context demonstrates just how ridiculous the crime actually is. It’s on the way out in Australia. Now, thankfully, its days may now finally be numbered, both in Ireland and in the UK too!

As for Ireland, the Minister for Justice suggested this week that we could see the enactment of the Defamation Bill, 2006 before the summer. Since it was introduced in July 2006, the Bill has suffered more delays than Ryanair, to say nothing of the long journey to reach that point which began with the work of the Law Reform Commission in 1991 (Consultation Paper and Report on the Civil Law of Defamation; Consultation Paper and Report on the Crime of Libel). The tortuous passage of this Bill through the Oireachtas has taken so long that I won’t hold my breath, but the fact that it is likely to recommence its less-than-steady progress is welcome news nonetheless. One of the many great benefits of this enactment will be the abolition of the common law crime of seditious libel. Section 34 of the Bill as introduced provides:

The common law offences of criminal libel, seditious libel and obscene libel are abolished.

Section 35 provides for the enactment of a new, much narrower and much more focussed, offence of publication of gravely harmful statements to replace these abolished common law offence. [Update: as Daithí points out in the comments below, this section has been removed from the Bill]. In the United Kingdom, Evan Harris MP has been working to achieve the same end. Writing at Index on Censorship yesterday, he explained his efforts:

Seditious libel law is a travesty of justice

The UK government’s retention of this archaic legislation only serves to justify oppression in other countries, writes Evan Harris

In 1763, journalist John Wilkes and 49 of his publishers were arrested for seditious libel. Their crime was to have written and disseminated an editorial criticising the state, in the person of King George III.

It would be unthinkable for the state to use such power today — but nearly 250 years on, the laws of sedition still sit in this country’s statute books. … It is not acceptable that 21st-century Britain hasn’t got rid of these laws yet. That’s why I, along with English PEN, Index on Censorship, Liberty, Article 19, and many others, have come together to campaign for their abolition. The Coroners and Justice Bill is currently making its tortuous way through Parliament, and it is a large beast of a bill which is a struggle to scrutinise. But such a portmanteau bill is the opportunity I have been looking for to table amendments which would repeal these ridiculous bits of legislation. …

… Writers, journalists, activists, and citizens worldwide are looking to Britain to lead the way. After all, how can we criticise other nations, when we haven’t got our own house in order? John Wilkes would be turning in his grave. As comedian and activist Mark Thomas has said, ‘I hope MPs will weed out the ancient, twisted law of seditious libel so I can get on with the job of describing them accurately.’

Are you a Law student, undergraduate or postgraduate? If so, you should come along to a colloquium in TCD next Saturday, 4 April 2009, from 11:00am, and hear other law students present short papers across the full range of the law. Full information about this exciting event is available here, and attendance is free, but you will need to register by email in advance. Hosted in the School of Law, Trinity College Dublin, the event has been made possible by the generous support of Allen & Overy and Matheson Ormsby Prentice. It’s going to be interesting and lot of fun (and there’s a wine reception at the end). So, what are you waiting for? Send that email now!

Three stories from today’s Irish Times caught my eye. First, the good. The Press Council of Ireland and the Office of the Press Ombudsman launched their first annual report yesterday. The press industry undoubtedly did a good thing in establishing the Press Council and the Ombudsman, and yesterday’s report on the first year of operation shows the wisdom of that decision. The launch of the report is covered in the Home News section of the Irish Times, and welcomed in the lead editorial . From the report [with added links]:

Praise for complaints system after release of Press Ombudsman’s report

AGGRIEVED READERS made over 370 complaints about newspapers and magazines last year during the Press Ombudsman’s first year of work, his annual report reveals. … Reviewing the performance of the Press Council of Ireland and the Office of the Press Ombudsman in their annual report published yesterday, council chairman Prof Tom Mitchell said the innovative and effective regulatory system offered significant benefits to the press and public. …

Moreover, speaking at the launch, the Minister for Justice, Dermot Ahern, said he hoped that the long-delayed Defamation Bill, 2006 would become law by the summer, an aspiration which Prof Mitchell greeted as “wonderful news”.

Second, the bad. Well, it’s no much that it’s bad as that it’s not enough. At present, Irish broadcasting law bans political advertising, and tightly regulates religious advertising. It was originally intended simply to restate this position in the Broadcasting Bill, 2006, but the Minister for Communications, Eamon Ryan, has announced that the restrictions on religious advertisements. This, too, is a good thing. But it is not enough of a good thing. The ban on political advertising should also have been revisited. And the failure to address this issue is a bad thing. From the report:

Controls on religious ads for broadcast to be relaxed

MINISTER FOR Communications Eamon Ryan will soften current restrictions on religious advertisements that are broadcast on television and radio. … “Advertising shouldn’t be used for promoting a particular religion or as an agent for recruitment. At the same time, I don’t want to completely restrict advertising that has a religious connotation.” …

Third, the ugly. And this is downright ugly. When the Defamation Bill, 2006 was introduced into the Seanad, it had an ugly twin, the Privacy Bill, 2006. However, as the Defamation Bill proceeded on its fitful way through the Oireachtas [Parliament], the Privacy Bill seemed to fade. Now, it is back with a bang. I do not for one moment doubt that Irish law on privacy is in need of reform, but I likewise do not think that the Privacy Bill as it was introduced in 2006 is the answer to that need. It was overly-restrictive on the meida, whilst ignoring almost every other aspect of privacy protection (eg, cctv, online privacy, genetic privacy, and so on). It now seems that the revived Bill will address some at least of those other issue, but the tone of the Minister’s comments yesterday suggest that the draconian media provisions will remain. And if they do, that would be an ugly thing. From the report:

Ahern says he plans to revive privacy Bill

MINISTER FOR Justice Dermot Ahern has revived plans to introduce laws to protect the privacy of individuals, citing a “worrying trend in media intrusion in order to get a good story”.

Yesterday, however, Mr Ahern announced he planned to inject fresh momentum into the Bill by updating its provisions to reflect recent legal and technological developments. … The violation of privacy was not the exclusive preserve of the media, he said, and many complaints over privacy now concerned actions by individual citizens against others. …

He made these comments at the launch of the Press Ombudsman’s annual report referred to above, and today’s Irish Independent’s report of the launch led with this aspect of his speech. This was where he made his comments on the prospects for the Defamation Bill’s eventual enactment (which I think is a good thing). But he said that he had “misgivings” about the defence of reasonable publication. And if these misgivings translate into the removal of the defence from the Bill, that would be a very ugly thing indeed.

Update (5 April 2009): Leave Press Council to do its work: in the Sunday Independent, Emer O’Kelly argues that the Government’s plan to amend the law on privacy will restrict freedom of enquiry, and it would be better if the Press Ombudsman and Press Council were to develop a body of decisions to cover the area.