In essence, the Bill requires telecommunications companies, internet service providers, and the like, to retain data about communications (though not the content of the communications); phone and mobile traffic data have to be retained for 2 years; internet communications have to be retained for one year. This is better than it could have been, in that the Directive would have allowed 2 years for all traffic data; but it is a lot worse than the minimum of 6 months allowed by the Directive. This will impose significant costs on those obliged to retain and secure the data, and those costs will be passed on to their already hard-pressed customers. And it is likely to drive international telecommunications and internet companies to European states which have introduced far less demanding regimes.
Traffic data retention (like any example of pre-emptive and widespread surveillance) is simply a bad idea; it is a massive invasion of privacy; it is founded on the illiberal and anti-democratic suspicion that someone somewhere might be doing something; and it is not good enough to reply that if you have nothing to hide, you have nothing to fear from surveillance. As the prolific and challenging AC Grayling argues in his new book Liberty in the Age of Terror: A Defence of Civil Society and Enlightenment Values (Bloomsbury, 2009; reviewed by The Economisthere), this perniciousassertion is “one of the most seductive betrayals of liberty” imaginable; it assumes that
the authorities will always be benign; will always reliably identify and interfere with genuinely bad people only; will never find themselves engaging in ‘mission creep’, with more and more uses to put their new powers and capabilities to; will not redefine crimes, nor redefine various behaviours or views now regarded as acceptable, to extend the range of things for which people can be placed under suspicion—and so considerably on.
The concerns might be met by strong protections coupled with meaningful oversight, but the Bill is worryingly bereft on this score. Although it imposes obligations to retain data, and to maintain it secure, and to prevent unauthorised access to data, it does not provide any redress to someone whose data is retained insecurely or accessed without authorisation; and the Data Protection Acts, 1988 (also here) and 2003 (also here) are inadequate to cope (for example, they would provide no criminal sanction for the News of the World’s recently-disclosed shenanigans). Worse than that, large-scale databases are peculiarly vulnerable to attack – an investigation by More4 News for Channel 4 reported last week (in a story that should give some pause to those planning a system to trace patients for Ireland) that more than 8,000 dangerous viruses have infected NHS computers in the last year, overloading networks, and massively compromising large amounts of personal data.
It is appropriate to restrict individual privacy provided that there is a good reason to do so, and the restrictions do not good too far. In the context of this Bill, the prevention of crime is a good reason, but the restrictions seem to go very far indeed, especially in the absence of proper protections and oversight. In S and Marper v UK 30562/04 [2008] ECHR 1581 (4 December 2008) one of the reasons given by the European Court of Human Rights for holding that the UK’s retention of innocent people’s DNA records on a criminal register infringed their right to privacy was the lack of sufficiently strong safeguards. I am a Director of Digital Rights Ireland; this is one aspect of our ongoing challenge to Ireland’s data retention regime; and this flawed Bill does nothing to alleviate these concerns.
AlbieSachs is a remarkable man. His official bio begins
On turning six, during World War II, Albie Sachs received a card from his father expressing the wish that he would grow up to be a soldier in the fight for liberation.
He began that fight as a seventeen year old law student; as a lawyer, the bulk of his work involved defending people charged under apartheid’s racist and repressive security laws – many of them faced the death penalty. As a result he was harassed by the security police, detained in solitary confinement for two prolonged spells of detention, tortured by sleep deprivation, forced into exile in 1966, and in 1988 blown up by a car bomb which cost him his right arm and the sight of an eye. In exile, he worked as an academic in the UK and Mozambique, campaigned for human rights and an end to apartheid, and thought deeply and wrote widely about the role of law as a protector of human dignity in the modern world. He wrote many of the ANC’s constitutional documents, helped to negotiate South Africa’s transition to constitutional democracy and to draft its post-apartheid Constitution, and was one of the founding judges of the Constitutional Court in 1994. The Court’s first hearing, in S v Makwanyane (CCT3/94) [1995] ZACC 3 (6 June 1995) (also here), concerned the constitutionality of the death penalty, which it unanimously found to be unconstitutional. As his term on the Court nears its conclusion, he has written a beautiful memoir The Strange Alchemy of Life and Law (OUP, 2009); from the publisher’s website:
The book provides unique access to an insider’s perspective on modern South Africa, and a rare glimpse into the working of a judicial mind. By juxtaposing life experiences and extracts from judgments, Sachs enables the reader to see the complex and surprising ways in which legal culture transforms subjective experience into objectively reasoned decisions. With rare candour he tells of the difficulties he has when preparing a judgment, of how every judgment is a lie. Rejecting purely formal notions of the judicial role he shows how both reason and passion (concern for protecting human dignity) are required for law to work in the service of justice.
Two of his judgments will help to give the measure of the man as a judge. First, in Minister of Home Affairs v Fourie (CCT 60/04) [2005] ZACC 19 (1 December 2005) (also here) he held that the definition of marriage as between a man and a woman was inconsistent with the Constitution since it excluded same-sex couples, and the failure to provide them the means to enjoy the same status, entitlements and responsibilities accorded to heterosexual couples through marriage constituted an unjustifiable violation of their rights. And in S v M (CCT 53/06) [2007] ZACC 18 (26 September 2007) (also here) he reversed a prison sentence on a woman primarily because it would infringe the human rights of her three children. He tells the story of the former case in this extraordinary University of Chicago talk; he tells the story of the latter case in this fascinating Guardian interview; and there are wonderful pieces (part interview, part review of Alchemy, part meditation) about him in The Scotsman, The Independent (SA), and The Independent (UK). The Guardian interview says that, at the time he was writing the judgment in S v M (with added links):
Sachs did not know of any country that took the rights of offenders’ children into account, but he subsequently discovered that similar ideas were being framed in Scotland in a report by the then children’s commissioner, Kathleen Marshall.
The report, Not Seen, Not Heard, Not Guilty, argues that the rights of offenders’ children to family life under the UN Convention on the Rights of the Child are systematically ignored by the court system. The report found that almost two-thirds of prisoners in the Cornton Vale women’s prison in Stirling had children under 18, but there was no provision to take their rights into account during sentencing.
“This was astonishing,” Sachs told the audience. “In a totally different legal system, in a totally different society, a conclusion was being reached that is almost identical. It showed that the time has come for new ways of thinking.”
That is as true of Ireland as it is of Scotland as it is of South Africa. The Irish Council for Civil Liberties (ICCL) has recently published an important paper on Protecting Children and Respecting the Rule of Law (pdf) written by Roisin Webb. It demonstrates one of the ways in which we can all benefit from the wisdom, justice and humanity of Albie Sachs.
A Leader in today’s Irish Times welcomes the passing of the Defamation Bill, 2006, and argues that it will set an appropriate template for the practice of journalism in Ireland:
The Defamation Bill has concluded its passage through the Oireachtas, with a few deserved wobbly moments on blasphemy, and now awaits the signature of President McAleese. It will set the template for the practise of journalism in the years ahead. …
The new regime for journalism will operate on twin pillars. The Bill attempts – quite successfully – a balancing of constitutional rights: between the public’s right to know and the citizen’s right to a good name. … The concession to the practise of journalism is the new defence of “reasonable publication” allowing newspapers to publish stories of public importance for the public benefit if they can be shown to have been thoroughly investigated and done in good faith – even if allegations made in them turn out to be untrue.
The quid pro quo for these changes is the Office of Press Ombudsman and an independent Press Council which are given legal privilege for their findings in the Bill. These offices give readers a formal and free complaints system which has been in operation for more than a year. The Irish Times supports them wholeheartedly. They face a huge challenge to stem the slide in standards in Irish journalism. …
Having been passed by the Dáil (lower house of parliament) earlier this week, today’s papers are full of the news that the Defamation Bill, 2006 was passed yesterday by the Seanad (upper house of parliament) (the full debate is here); all that is now required for it to become law is the signature of the President.
However, even at this late stage, there was still time for another twist on the Bill’s sinuous route into law. From the front page of this morning’s Irish Times:
The Government lost a vote in the Seanad yesterday on the Defamation Bill but managed to salvage the legislation by calling for a walk-through vote which gave enough time for two missing Senators to be found.
The Government defeat came on an amendment to the Bill proposed by Senator Eugene Regan of Fine Gael proposing to delete the provision in the legislation making blasphemy a crime.
In an electronic vote whereby Senators press a button, the Government was defeated by 22 votes to 21 in the 60-member upper house.
However, Fianna Fáil whip Diarmuid Wilson immediately requested a walk-through vote which takes about 10 minutes to complete. In that period two Senators, Geraldine Feeney of Fianna Fáil and Deirdre De Burca of the Green Party, had time to get to the chamber and the amendment was defeated by 23 votes to 22. The Bill itself was then passed by the same margin. …
Update: I should say that, having been originated in the Seanad, the Bill had already been passed by that House (I blogged about it here), but for various reasons, having been changed in the Dail, it had to return to the Seanad before going to the President. Strictly speaking, therefore, the title of this post should have been: Defamation Bill passed by the Seanad, Again!
In a recent post, I discussed newspaper reports of a recent High Court case in which Quinn Insurance Group lost a High Court bid to strike out parts of the Sunday Tribune’s defence to forthcoming libel proceedings taken against it by the insurance company; and I promised to return to the case as soon as a full report of the judgment became available online. I can now make good on that promise, as the judgment is available here and here. It turned on the question of how much detail must be pleaded before trial by a defendant claiming that an alleged defamation was either true or covered by qualified privilege.
Relying on an internal and confidential Garda (police) memorandum, the Sunday Tribune alleged that senior Gardaí had been recruited by Quinn to investigate insurance claims being made against it, and that the Gardaí not only relayed detailed information to Quinn, but also offered bonuses or sweetners to solicitors on behalf of plaintiffs to recommend early settlements in cases or claims against Quinn. The paper characterised this as “a scandalous subversion of garda independence” and resources. The Quinn Group disputed the authenticity of the memorandum and sued for libel; the paper defended the memorandum and pleaded justification (in effect, that allegations were true), or alternatively that the disclosures were in the public interest and thus protected by qualified privilege.
In Quinn Insurance Ltd v Tribune Newspapers plc[2009] IEHC 229 (13 May 2009) (also here) the question for Dunne J was whether sufficient detail about the plea of justification had been provided to Quinn by the Sunday Tribune. Read the rest of this entry »
As recently prefigured on this blog, the Government has indeed used the legislative guillotine to force through their final amendments to the Defamation Bill, 2006. According to the RTÉ news website:
I have heard it said that when you get two lawyers in a room, you get at least three opinions. This is, unfortunately, usually true. It is therefore all the more impressive when you can get 133 of them to agree on something. Here’s a letter in today’s Irish Times on the impact of the Criminal Justice (Amendment) Bill, 2009, which is to be subject to a legislative guillotine before the Dáil rises next week:
Madam, – We the undersigned are lawyers whose practices include the area of criminal law. Many of us both prosecute and defend. We see at first hand the effect of crime, particularly violent crime on individuals and communities in our society and we also have a close up view of the criminal justice system with its strengths and its frailties.
We are extremely concerned then about the Criminal Justice (Amendment) Bill 2009 which, it appears, is likely to become law this week. It has been introduced without any research to support its desirability and without canvassing expert opinion or inviting contribution from interested parties on the issues. It appears now that it will be passed without proper debate in the Dáil because such debate has been guillotined by the Government.
It is quite simply astounding that we as a society would jettison ancient rights and rules of evidence in such a manner and seemingly without regard to the effect such impetuous legislating might ultimately have on the respect for the rule of law in this country.
While there are many aspects of the Bill that cause real and serious concern the most pressing are as follows: The abolition of jury trial for a range of new offences; the use of opinion evidence from any garda as to the existence of a criminal organisation; the failure to require that the garda opinion evidence be corroborated; the provision for secret hearings to extend detentions without the presence of the suspect or their lawyer.
Jurors who give up their time, as is both their right and duty, often come away with a deep appreciation of the process that must be applied in ensuring a fair trial for all and a realisation of the magnitude of the decision which has been entrusted to them. The right to trial by jury is enshrined in our Constitution, only to be taken away where it is determined that the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order.
Are we as a nation at greater threat from “ordinary” criminals than other countries are from organised international terrorism? The US will allow jury trial of those within its territorial borders. In the UK they try “terrorist” offences in jury courts. Recent legislation in the UK has allowed for rare non-jury trials but it at least requires a hearing before such an order can be made. If this legislation is passed, all these new offences will go to the Special Criminal Court unless the DPP directs otherwise. The United Nations Human Rights Committee has already condemned the inequality of similar provisions as it applies to existing offences but now it is proposed that we widen the net of those accused who are to be denied the right to a jury trial.
Opinion evidence from a Garda must be understood as simply that – an opinion. No basis for such an opinion would be required by this Bill. No corroboration is required. A Garda on the beat – who may base it on a person’s previous convictions or from evidence upon which he/she will claim privilege and therefore not have to divulge where it came from – will be able to give an opinion which could result in conviction and sentence for a serious crime. The Constitution will surely not permit this, but even if it does, Ireland is likely to find itself shamed before the international community when the European Court of Human Rights or the United Nations Human Rights Committee are, inevitably, called upon to rule on the issue.
When seeking extensions of detention for the purpose of investigation the hearings may be heard in secret and not just in the absence of the person in detention and his/her lawyer but without even the judge’s clerk or prosecution lawyer if deemed appropriate. Secret hearings should be anathema to a system based on the rule of law. From the manner in which detention hearings are currently conducted, there is nothing to suggest that investigations would be compromised. In the main the court hears generalised evidence about the necessity for further time to carry out interrogations, forensic testing or assessment of evidence.
Finally we would draw attention to the fact that many of the issues that have been raised by the Government in promoting this Bill have already been addressed in previous legislation. For example, the intimidation of witnesses is met by both the use of out of court statements as evidence and the use of covert surveillance. Out of court statements have already been used before the courts and have resulted in successful prosecutions and the latter provisions regarding covert surveillance have to be given the opportunity to work before we rush headlong into unknown territory.
We the undersigned urge the Government to withdraw this Bill and instead provide for a short consultative period during which reasoned debate can be heard. – Yours, etc, [133 lawyers]
On the lawyers’ claims as to the incompatibility of the Bill with international norms, see Fiona Donson’s excellent Trial by Jury to be removed for organised crime offences, where she also discusses the English case of R v T & Ors[2009] EWCA Crim 1035 (05 June 2009) in which the Court of Appeal controversially applied section 44 of the Criminal Justice Act 2003 (which allows for a trial in the absence of a jury if there is a real and present danger that jury tampering would take place and that the likelihood that it would take place would be so substantial as to make it necessary in the interests of justice for the trial to be conducted without a jury).
Posted elsewhere (some of my recent posterous posts)
My posterous site is a companion to this blog: anything that catches my eye on the wild wild web that's too long for twitter but too short for a normal post here will (probably - eventually) end up over there.
The Communications (Retention of Data) Bill 2009, published last week, has caused a bit of a stir in this morning’s newspapers. It will give effect to EU Data Retention Directive 2006/24/EC of 15 March 2006 (blogged here) which recently survived challenge by the Irish Government in the European Court of Justice, and it will replace the radically misconceived and deeply flawed stop-gap Part 7 of the Criminal Justice (Terrorist Offences) Act, 2005 (also here) (blogged here). 
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