Month: November 2009

“Predictions are difficult, especially about the future.” I have seen this variously attributed to Neils Bohr, Sam Goldwyn, and Yogi Berra. Whoever said it, it contains a grain of truth: when it comes to the future, all we can do is speculate. In my paper for last Saturday’s conference on Recent developments in Irish Defamation Law, I speculated on the prospect that the Defamation Act, 2009 (pdf) may be unconstitutional or incompatible with the ECHR in some important respects.

In Steel and Morris v UK 68416/01, (2005) 41 EHRR 22, [2005] ECHR 103 (15 February 2005) (the infamous McLibel case) the ECHR held that the applicants’ rights under the Convention had been infringed by the failure to allow them legal aid, in an inflexible presumption of falisty (affirmed here), and in the rule that a body corporate taking a defamation action need not prove special damage, in all three cases because these rules compounded the significant imbalance which they faced in defending a defamation action being taken against them by a multinational corporation (McDonald’s).

In Ireland, defamation is absolutely excluded from the legal aid regime by section 29(8)(a)(i) of the Civil Legal Aid Act, 1995 (also here), and the 2009 Act does not ameliorate this in any way; but since there is no constitutional right to civil legal aid at Irish law, if it is invalid, the remedy is a declaration of incompatibility with the ECHR under section 5 of the European Convention on Human Rights Act, 2003 (also here). The presumption of falisty could, by virtue of the interpretative obligation under section 2 of the ECHR Act, 2003 (also here), be removed by a literal interpreation of sections 2 and 6(1) of the 2009 Act. And the rule in section 12 that a body corporate can sue without proof of special damage could be reversed by a finding of unconstitutionality or a declaration of incompatibility.

Certain provisions of the Act relating to defences are also questionable. For example, section 15(1) provides for the abolition of pre-Act defences, but it fails to provide for a saver for any defences which may have been generated by the Constitution or the Convention, such as the emergent defence of responsible publication in the public interest. Again, section 20(1) provides for a defence of honest opinion, renaming and replacing the defence of fair comment. The plea in Hunter v Duckworth [2003] IEHC 81 (31 July 2003), dodged by the Supreme Court, was that the common law was defective having regard to the constitutional protections of the “right to express freely … convictions and opinions”. If the impact of the constitution in this area is determined at a later stage in Hunter, then section 20(1) will have to be measured against it. And the puny new defence of fair and reasonable publication in section 26, is likely to be overpowered by the development – driven by the Constitution and the Convention – of a public interest defence and new species of qualified privilege.

Of course, these are only prospects, even if they are open on the text of the Act as it stands. But they are still worthy of consideration, and they demonstrate that the Act raises as many questions as it has answered.

By rmay (also here) on Toonpool:

Image: Defendant standing in front of a judge.
Caption: Judge: “… plus thirty days for not turning off your damn cell phone”.

Bonus link: Roy Keane‘s reaction to a reporter who doesn’t turn a ringing phone off.

The Irish Society of Comparative Law (ISCL) was established in June 2008 to encourage the comparative study of law and legal systems in Ireland. They will host a very exciting event tomorrow evening, 26 November 2009, when Professor Esin Örücü (left) of the School of Law, University of Glasgow will speak on the topic:

A Comparatist’s Analysis of the Convergence of Legal Systems.

The lecture will be held in Room 11 of the School of Law, Trinity College Dublin (map) from 5:00pm to 6:30pm. Admission is free, and all are welcome. Queries about the event or the society may be directed to the Vice President or the Secretary.

Prof Örücü is Emeritus Professor of Comparative Law at both the University of Glasgow and Erasmus University in Rotterdam; she is a Member of the International Academy of Comparative Law; and she has been a towering figure in comparative legal scholarship for the last 30 years or more. Her recent book The Enigma of Comparative Law: Variations on a Theme for the Twenty-First Century (Martinus Nijhoff, 2004) – delivering on its musical sub-title in chapters successively headed Overture, Intermezzo, Cadenza and Finale – is a beautifully composed and powerful meditation on the role and function of comparative law. Reviewing it in (2005) 9 (3) EJCL, Jaakko Husa says that the book

… enriches the intellectual diet of contemporary law scholarship. It is hopefully going to be at the forefront of the debate over comparative law theory for the future. To conclude, it is not insignificant that the book was written in a manner genuinely open not only to an American or European, but to a global readership. For … an American reader interested in comparative law/comparative legal studies Enigma offers an exceptionally interesting point of view because it is not entangled in the American web of hostilities and alliances; on many points it may offer genuinely new perspectives to comparative law. For the European reader, it will be proof of an intellectually interesting life outside the ongoing integration-centred debates.

The same volume of the European Journal of Comparative Law published her valedictory lecture at Erasmus University: “Looking at Convergence through the eyes of a Comparative Law” (2005) 9 (2) EJCL. Building on Enigma, her theme that evening was that, in Europe,

… one of the most important roles that comparative law plays is in the harmonisation and unification of activities, and comparative lawyers are involved in the preparation of the many projects to achieve these ends. Such activity is of ever-increasing significance. Whether the starting point be ‘common core’ studies or ‘better law’ studies, the areas prepared for harmonisation and unification are on the increase.

The place of comparative law in all this is crucial. Firstly, comparative law is a fundamental source for any Europe-wide project, in fact, of European law itself. It is the main tool for working towards European integration. It aids in overcoming exclusive nationalism and shows how the ius commune novum must be based on intercultural communication while leaving room for diversity. … The mere existence of the European Union implies that comparative law has a serious role in the developing of principles. Secondly, the kind of comparative law that facilitates intercultural communication is the one which goes beyond juxtaposing, contrasting and comparing. This strengthens the call for comparative lawyers to be trained in interdisciplinary research problems, to have knowledge of and familiarity with different legal cultures, to have a good command of languages, knowledge of history, economics and politics, and also to receive training in methodology. Thirdly, the work of comparative lawyers in facilitating the achievement of the interrelationship between the overlapping circles to bring about intercultural understanding is vital.

She is certain to return to these themes and variations tomorrow night.

Via ECHR blog, news of an important article:

Article on ECtHR and Comparative Law

Monika Ambrus, a colleague within the Netherlands School of Human Rights Research, based at Erasmus University Rotterdam, has posted ‘Comparative Law Method in the Jurisprudence of the European Court of Human Rights in the Light of the Rule of Law’ on SSRN. The article has appeared in the Erasmus Law Review (vol. 2. No. 3, 2009). This is the abstract:

In several cases, comparative law exercises have been given excessive weight, which has given rise to conflicting interpretations in the case law of the European Court of Human Rights (ECtHR). This use of the comparative law method by the Court has been widely criticised. The critical voices have generally argued in terms of what is prohibited by the principle of the rule of law, which the Court itself is also bound to take into account, namely the arbitrary use of power. In the light of these criticisms, it is a challenging task to examine whether and to what extent the comparative law method complies with the principle of the rule of law, which is the aim of this paper. An analysis of several ECtHR cases demonstrates that in many respects the comparative exercises of the Court indeed do not comply with the requirements set by the formal conception of the rule of law. The application of the comparative law method is neither consistent nor sufficiently transparent. In addition to exploring the problematic aspects of the application of the comparative law method, the paper also formulates some recommendations in order to bring this method into accordance with the principle of the rule of law.

Because of this.

Alison Healy, writing in today’s Irish Times, quotes a spokesperson for the Department of Justice as saying that

… no part of the [Defamation] Bill had come into force yet but the [Defamation] Act was expected to be commenced in January.

Healy continues that, whilst in July, the Department had said that the Act was expected to commence in October, the spokesperson confirmed that it is now expected to commence in January 2010. For earlier comments to the same effect, see Rossa McMahon (see also here).

Unfortunately, the headline is the far more sensationalist

Blasphemy law unlikely to come into force this year

Yes, the Defamation Act, 2009 (pdf) does indeed have provisions relating to blasphemy; yes, I’ve written quite a bit about those provisions on this blog; (and yes, international reaction (pdf) continues (pdf) to be negative); but there is far more to the Act than that. If you want to find out more, you could do worse than to attend this event.

For a low grade to be a breach of contract, there must first be a contract, and courts are slow to find the existence of such a contract, in part because they are reluctant to get involved in grading disputes. Thus, for example, in Keefe v New York Law School (17 November 2009) (hat tips: ContractsProf Blog | Adjunct Law Prof Blog; update: 25 Misc 3d 1228(A) (2009) aff’d 71 AD3d 569 (2010)) York J held that general statements of policy in a school’s bulletins, circulars, catalogues, handbooks and website are not sufficient to create a contract between a student and law school; rather, only specific promises that are material to the student’s relationship with the school can establish the existence of a contract. (Compare and contrast the decision of Murphy J in Tansey v College of Occupational Therapists Ltd [1986] IEHC 2, [1995] 2 ILRM 601 (27 August 1986)). York J provided an important policy justification for this approach:

As a general rule, judicial review of grading disputes would inappropriately involve the courts in the very core of academic and educational decision making. Moreover, to so involve the courts in assessing the propriety of particular grades would promote litigation by countless unsuccessful students and thus undermine the credibility of the academic determinations of educational institutions. We conclude, therefore, that, in the absence of demonstrated bad faith, arbitrariness, capriciousness, irrationality or a constitutional or statutory violation, a student’s challenge to a particular grade or other academic determination relating to a genuine substantive evaluation of the student’s academic capabilities is beyond the scope of judicial review. …

Two pieces in yesterday’s Irish Times caught my eye. The first relates to the retirement of the man who has probably the most recognised signature in Ireland. The second relates to the responsibility of those who write other words that many of us read.

For the past six years, every movie released in Ireland has been classified by his office with a certificate signed by him. He is John Kelleher, and he has just retired as Director of the Irish Film Classification Office:

‘I don’t believe in censoring for adults’

He’s seen nearly 2,000 films personally and supervised the watching of 55,000 others, yet the film censor John Kelleher only banned one film. Mr Kelleher, the director of the Irish Film Classification Office (Ifco), stepped down yesterday just two days short of his 65th birthday. …

He says his biggest achievement in office was to be involved in last year’s Civil Law (Miscellaneous Provisions) Act, which changed the name from the Irish Film Censor’s Office to the [the Irish Film Classification Office] Ifco. The Act changed his job title to reflect his primary role in classifying rather than censoring films. The phrase “likely to cause harm to children” was introduced into the legislation for the first time. [He said:]

I don’t believe in film censoring for adults, I believe in film classification for minors. I hope that people realised that I was trying to ensure that adults could look after themselves, that it was the welfare of children which was paramount

Established in 2007, the Office of the Press Ombudsman is part of a system of independent regulation for the printed media in Ireland which provides the public with a quick, fair and free method of resolving any complaints they may have in relation to newspapers and periodicals. Prof John Horgan is the Press Ombudsman and he spoke yesterday of the responsibilities of reporters and editors to the their readers:

Press ombudsman stresses duty of journalists to their readers

The credibility of the media is best defended by journalists who recognise that their loyalty to their readers is at least as important as their loyalty to their employers, the Press Ombudsman, John Horgan, has said.

The licence to print is now ultimately granted by the public and can be withdrawn if credibility, reliability, fairness or honesty was put at risk, he warned. “Credibility is like an iceberg: once it melts, it is impossible to reconstitute it.

Prof Horgan, who was speaking at the launch of a memoir by former Irish Times journalist Dennis Kennedy, said journalists were paid to exercise best judgment, though this could be elusive. Editors could find on occasion that such judgment could put them at odds with advertisers or owners, and journalists could find themselves at odds with editors. …