A New York woman who says she cannot find a job is suing the college where she obtained a bachelor’s degree, because the college’s Office of Career Advancement did not provide her with the leads and career advice it had promised. (Update: Registrarism ponders the possibility of a similar claim in the UK, not least because, as the Guardian recently commented, as the recession bites hard, the options for new graduates look frighteningly limited). Perhaps someone somewhere along the line didn’t write her a good enough reference. If you don’t write a good enough reference, you might get sued: that’s one of the lessons of Spring v Guardian Royal Insurance [1995] 2 AC 296, [1994] UKHL 7 (07 July 1994). Moreover, the fear that subjects could have access to references under the Freedom of Information and Data Protection regimes is making referees less candid and thus less helpful. On the other hand, if you over-egg the pudding, there’s little value in what you write. Nevertheless, the trend now is to write paeans of uncritical praise rather than to analyse the candidates strengths and weaknesses. For example, Mary Beard has recently commented:

Anyone who has been involved in academic job interviews and selection … knows how important the references are. … Anyone who has recently been involved will also know how difficult it is to get a supportive but honest assessment. The current rhetoric is of unadulterated praise, sometimes (I fear) laughably dishonest. It’s worse among American referees, but the Brits are fast catching up. …

It is the same in Ireland, in my experience. Indeed, Ferdinand von Prondzynski has recently gone so far as to say:

I cannot remember when I last read a reference that made even a minor difference to my perception of a candidate for a job.

So, what’s to be done? Is there a way to discount the hyperbole? Can the writing of (more) honest references be re-incentivised? I confess I don’t have the answers to these questions, but then neither Mary Beard nor Ferdinand von Prondzynski has either.

Following on from my comments about email disclaimers, via TJ and OUT-LAW.com here and here, I learn of the decision of the Court of Appeal in England and Wales in Patchett v Swimming Pool & Allied Trades Association Ltd [2009] EWCA Civ 717 (15 July 2009) on the efficacy of website disclaimers. The plaintiffs asserted that they had suffered financial loss by relying on a mistaken statement on the defendants’ website, and the defendants countered that that clause on the site which urged visitors to the site to make further enquiries effectively disclaimed liability. In the Court of Appeal, Lord Clarke MR for the majority (Scott Baker LJ concurring, Smith LJ dissenting) held, at pargarph 39:

… I do not think that it can fairly be held that [the defendants] assumed a legal responsibility to the [plaintiffs] for the accuracy of the statements in the website without the further enquiry which the website itself urged.

And, in the next paragraph, he concluded:

When application was being made for permission to appeal it was suggested that special considerations apply to representations on websites. I do not think that the mere fact that the representations were contained on a website supports the conclusion that a duty of care is owed. As ever, all depends on the circumstances. Some websites are interactive and it may be possible, applying the principles outlined above, to conclude in particular circumstances that a duty is owed. However, I agree with the judge that that is not the case here.

So, website disclaimers can be effective in principle, but – as ever with the law – whether they are in any given situation will turn on the facts of the case. I supposed I’d better see to a disclaimer for this site then.

Marie McGonagle, NUI Galway, writes in today’s Irish Times that the judgment in Mahon Tribunal v Keena [2009] IESC 64 (31 July 2009) (also here (pdf)) copperfastens the right of journalists to protect sources (with added links):

The vital public watchdog role of the press was upheld by the Supreme Court

… That decision, particularly as it emanates from a unanimous Supreme Court, must … mark a very significant stage in the development … of legal recognition of the right of journalists to protect their sources.

… Mr Justice Nial Fennelly … proceeded to consideration of the High Court judgment, with which he agreed in many respects. There is no doubt that the High Court judgment was valuable, particularly for its examination of the powers and interests of tribunals under the relevant legislation, and of the European Convention on Human Rights (ECHR) Article 10 principles of freedom of expression, including protection of journalists’ sources. Indeed, the High Court accepted that “the non-disclosure of journalistic sources enjoys unquestioned acceptance in our jurisprudence and interference in this area can only happen where the requirements of Article 10(2) . . . are clearly met”. The principle, which had long been denied in Irish law, was, therefore, firmly established. The questionable aspect of the High Court’s decision was the actual balancing between the interests of the tribunal and the protection of sources. Read the rest of this entry »

Via Simon Fodden on The Court:

As I wrote in my previous post, the Supreme Court in Mahon Tribunal v Keena [2009] IESC 64 (31 July 2009) (also here (pdf)) allowed the appeal against the decision of the High Court in Mahon v Keena [2007] IEHC 348 (23 October 2007). Fennelly J delivered the judgment of the Court, in which Murray CJ and Geoghegan, Macken and Finnegan JJ concurred, and its effect is that two Irish Times journalists could decline to answer questions about their sources (unsurprisingly, there is a lot of coverage in that paper: see here, here, here, here and here).

1. Introduction
There are at least three important aspects to Fennelly J’s decision. The first relates to his almost exclusive reliance on the European Convention on Human Rights (ECHR), rather than the Irish Constitution. The second relates to his approach to the issues in general and to his treatment of the High Court judgment in particular: in short, he felt that the High Court had overstated the balance against the appellants. And the third relates to what he had to say about the nature of a journalist source privilege: in short, he preferred to avoid such language in favour simply of a balancing test. Taking all these issues into account, I’m not convinced that it is an unequivocal recognition of a journalist source privilege as a matter of Irish law; instead, it seems to me that this is a very carefully circumscribed decision which is, at best, a muted victory for the journalists. Read the rest of this entry »