From the cover of Kathryn Dalziel‘s Privacy in Schools: A guide to the Privacy Act for principals, teachers and boards of trustees (Privacy Commissioner of New Zealand, 2009), a cartoon by Chris Slane:
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Image: teacher and schoolboys in a classroom surveyed by several cctv cameras.
Caption: schoolboy to teacher: “Please sir, can I have some more privacy?”
John O’Dowd of the School of Law, UCD, is first into print with a detailed analysis of the Defamation Act, 2009 (pdf): see “Ireland’s New Defamation Act” (2009) 1 (2) Journal of Media Law 173-190. Here’s the abstract [with added links]:
The Defamation Act 2009 [pdf] places the law of defamation in Ireland on an almost completely statutory footing. It results from almost 20 years’ analysis and debate, starting with two Law Reform Commission reports in 1991 [tort of defamation html, pdf; criminal libel html, pdf]. During those two decades, some of the Commission’s proposals were overtaken by judicial development of the common law of defamation, notably by the emergence of the Reynolds [see Reynolds v Times Newspapers [2001] 2 AC 127, [1999] UKHL 45 (28 October 1999)] defence. The Act reflects a determination to take account of such changes, particularly in respect of Reynolds. The Act is distinctive through the reference which it makes to the Press Code of Practice, the Press Ombudsman and Press Council established in 2008 [link]. Those were the response of the press to proposals made to the Government for a statutory press council with regulatory powers over periodical publications. The new defence of fair and reasonable publication on a matter of public interest employs the Code of Practice and the determinations made by the Ombudsman and Council as a yardstick of reasonableness. Reported disagreement within government transpired, not to relate to these modifications of the law of defamation, but to whether or not they must be counter-balanced by a more effective legal protection of personal privacy.
In Mahon Tribunal v Keena [2009] IESC 64 (31 July 2009) (also here (pdf) (to which I will refer as Mahon Tribunal v Keena (No 1)) the Irish Times successfully resisted an attempt by the Mahon Tribunal to compel the Editor and Public Affairs Correspondent of the Irish Times to disclose the source of a leaked Tribunal document. However, in Mahon Tribunal v Keena [2009] IESC 78 (26 November 2009) (to which I will refer as Mahon Tribunal v Keena (No 2)), the Court held that the journalists should pay the Tribunal’s costs of more than €600,000.
In yesterday’s post, I argued that this was illogical: if the journalists had a privilege to with-hold the document and decline to answer the questions, then they had the privilege, and it doesn’t matter what they did with the document, and taking objection to its destruction by the journalists is neither here nor there. However, even if this might provide some justification for some punishment of the journalists, nevertheless, the European Court of Human Rights is very likely hold that this punishment is inconsistent with Article 10 of the European Convention on Human Rights. A crucial case in this respect is Cumpana and Mazare v Romania 33348/96, (2005) 41 EHRR 14, [2004] ECHR 692 (17 December 2004), where the Court held that although some penalty would have been appropriate, disproportionately severe sanctions infringed the applicant journalists’ Article 10 rights. (more…)
In a classic example of giving with one hand and taking away with the other, the Supreme Court first held that the Irish Times could assert a privilege to decline to answer questions from a Tribunal, but then ordered the paper to pay the Tribunal’s costs. This is, to say the least, a curious and illogical decision, and it is very doubtful whether the European Court of Human Rights would find it compatible with Article 10 of the European Convention on Human Rights.
According to a report in yesterday’s Sunday Tribune (see also Saturday’s Irish Times and the BBC News website) the Police Service of Northern Ireland (PSNI) have been ordered to pay 75% of the costs incurred by Suzanne Breen, Northern Editor of the Sunday Tribune, in successfully resisting the PSNI’s attempt to compel her to disclose her sources. The general rule, subject to the court’s discretion, is that costs follow the event, so Breen might reasonably have expected that the PSNI would have to pay all of her costs, but she seems to be satisfied with the decision that they should pay 75%.
Recall that in Mahon Tribunal v Keena [2009] IESC 64 (31 July 2009) (also here (pdf) (to which I will refer as Mahon Tribunal v Keena (No 1)) the Irish Times similarly resisted an attempt by the Mahon Tribunal to compel the newspaper to disclose the source of a leaked Tribunal document. Again, since costs follow the event (see Order 99 Rule 1 RSC), the Irish Times might reasonably have expected that the Tribunal would have to pay all of their costs; like Breen, they might well have been satisfied with a decision that the Tribunal should pay 75%; indeed, they have accepted a decision that both parties bear their own costs. However, last week, the Supreme Court did not choose any of these options, but instead ordered that the Irish Times had to pay the Tribunal’s costs, which have been estimated at more than €600,000.
It is peculiar that the Court should punish an action that it held was justified by journalist source privilege. In this post, I will look at the logical basis for this decision. In tomorrow’s post, I will look at the issues which arise under Article 10 of the European Convention on Human Rights. (more…)
Via Shannon Burns:
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Image: Defendant standing in front of a judge.
Caption: The internet made me do it.
From Christine Corcos on the Law and Humanities blog [with added links]:
Contract Law in the Comedy of Errors
Paul Raffield, University of Warwick School of Law, has published “The Comedy of Errors and the Meaning of Contract,” in Shakespeare’s Imaginary Constitution: Late Elizabethan Politics and the Theatre of Law (3 Law and Humanities (2009) [link]). Here is the abstract.
This article examines the theme of contract and its symbolic connotations of societas or fellowship, in the context of Shakespeare’s [link] The Comedy of Errors [link] and its performance on 28 December at the Gray’s Inn revels of Christmas 1594. Central to the argument is the extraordinary advancement of contract law in Elizabethan England, and in particular the significance of the promise to the status of binding bilateral agreements. In particular, the analysis considers the promotion of assumpsit [wikipedia] at the expense of actions for debt [especially after Slade’s Case (1602) 4 Co Rep 91a] in relation to a society (and a legal profession) whose mores were heavily influenced by humanist notions of the individual conscience, which simultaneously bound the subject of law into an ethical association with his fellow citizens and freed him (at least putatively) from the constraints of immutable, ancient law. The Comedy of Errors provides a perceptive critique of a society which is bound together only by the market, having abandoned or mislaid the true bonds of friendship and love, through which a just community may be recognised.
Bonus links: Christine’s next post brings news of Paul Raffield and Gary Watt (eds) Shakespeare and the Law (Hart, 2008) [Amazon]; see also the conference from which the book flowed, and other links on the topic. Finally, for Ben Jonson’s perspective on the same legal developments, see Luke Wilson “Ben Jonson and the Law of Contract” (1993) 5 (2) Cardozo Studies in Law and Literature 281.
Randall P Bezanson has just pubished another very important book on on Art and Freedom of Speech (University of Illinois Press, 2009), exploring the decisions of the US Supreme Court relating to artistic expression under the First Amendment. From the abstract:
… In considering the transformative meaning of art, the importance of community judgments, and the definition of speech in Court rulings, Bezanson focuses on the fundamental questions underlying the discussion of art as protected free speech: What are the boundaries of art? What are the limits on the government’s role as supporter and “patron” of the arts? And what role, if any, may core social values of decency, respect, and equality play in limiting the production or distribution of art?
Accessibly written and evocatively argued, Art and Freedom of Speech explores these questions and concludes with the argument that, for legal purposes, art should be absolutely free under the First Amendment–in fact, even more free than other forms of speech.
In matters that have recently featured on this blog, his views on blasphemy (discussed here) and treaspassory art (discussed here) will resonate with our recent blasphemy and Cowengate controversies.
Mark Tushnet has written an excellent discussion of Bezanson’s book. Posing the question “Why exactly are Jackson Pollock’s paintings protected by the First Amendment?”, he argues that
People should check their wallets whenever the Supreme Court takes some proposition as unquestionable. Randall Bezanson shows why. Every route that you might take to explain why non-representational art is covered by the First Amendment leads to mind-bending problems, and rather rapidly places some other unquestionable proposition about free speech under pretty severe pressure. …
This isn’t to say that Bezanson’s proposed solution to the problems posed for the First Amendment by non-representational art is satisfactory. He says that art should be absolutely protected against government sanction, even more so than propositional speech. … Bezanson sometimes seems to think that his absolute rule is tolerable because he would apply it only to serious art. … Early on, Andy Warhol’s work wasn’t “serious” enough. Now it’s central to the study of mid-twentieth century art, full stop. Rules that purport to make important differences turn on a distinction between serious art and unserious “art” are unlikely to succeed.
It’s worth reading Tushnet’s review in full, and then it’s worth reading Bezanson’s book too. It demonstrates that the most profound questions about freedom of expression are often raised not in the context of the participatory political process but in the contested field of human emotions. The problems outlined in the book are universal; the analysis may be centred on the First Amendment; but it will surely provide a sure guide if and when the issues come up in other courts on foot of other free speech guarantees.
