Month: May 2010

Strasbourg is a beautiful city: it possesses a magnificent gothic cathedral; the Grande île is a UNESCO World Heritage site; and it is home to many European institutions, including the the European Court of Human Rights (ECHR, pictured left). It is a city with which Geraldine Kennedy, the Editor of the Irish Times, and Colm Keena, that paper’s Public Affairs Correspondent, will become very familiar, as they bring an exceedingly important case to the ECHR.

In Mahon Tribunal v Keena (No 1) [2009] 2 ILRM 373, [2009] IESC 64 (31 July 2009), the Supreme Court held that the Irish Times would not be compelled to disclose the source of a leaked Tribunal document which it had destroyed rather than produce to the Tribunal. Reversing the High Court ([2007] IEHC 348 (23 October 2007)), Fennelly J for a unanimous Supreme Court held:

68. Looking at the High Court judgment as a whole, I have come to the conclusion that the great weight which it attached to the reprehensible conduct of the appellants in destroying documents led it to adopt an erroneous approach to the balancing exercise.

69. According to the reasoning of the European Court in Goodwin [v United Kingdom 17488/90, (1996) 22 EHRR 123, [1996] ECHR 16 (27 March 1996)], an order compelling the appellants to answer questions for the purpose of identifying their source could only be “justified by an overriding requirement in the public interest.” Once the High Court had devalued the journalistic privilege so severely, the balance was clearly not properly struck. On the other side, I find it very difficult to discern any sufficiently clear benefit to the Tribunal from any answers to the questions they wish to pose to justify the making of the order.

70. I would, therefore, allow the appeal and substitute an order dismissing the Tribunal’s application.

However, the destruction of the document returned to haunt the Irish Times. In Mahon Tribunal v Keena (No 2) [2009] IESC 78 (26 November 2009) (also here), Murray CJ for the Supreme Court held that this deliberate act of destruction of evidence deprived the Tribunal of the possibility of conducting any meaningful inquiry into the source of the leaked letter, and such as to deprive the Irish Times of their normal expectation that the Court would, in the exercise of its discretion, award costs in their favour. As a consequence, the Court ordered that the Tribunal were entitled to recover from the Irish Times the costs of the action in both the High Court and the Supreme Court.

This struck me at the time as a bizarre conclusion that undermined the original decision that the journalists did not have to answer the Tribunal’s questions. 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. Moreover, I argued that the costs order infringed Article 10 of the European Convention on Human Rights. I am therefore delighted to learn that the Irish Times is to challenge it in the ECHR:

‘Irish Times’ applies to ECHR over costs

THE IRISH Times has applied to the European Court of Human Rights concerning the award of costs against it by the Supreme Court, despite it winning its case against the Mahon tribunal … on the grounds that a number of the rights of Kennedy and Keena have been violated, in particular their rights under article 6 of the European Convention on Human Rights, guaranteeing a fair trial, and Article 10, guaranteeing freedom of expression. …

They point to the “chilling effect” of such an award of costs on the exercise of press freedom, pointing out that the ECHR has already ruled that an order to disclose sources cannot be compatible with article 10 unless it is justified by “an overriding requirement of public interest”.

The Court will first determine whether the application is admissible. If it is declared inadmissible, that decision is final, but I would be shocked if the case failed at this stage; since the case is not manifestly ill founded. If it is declared admissible, the Court will encourage the parties to reach a friendly settlement. This is, to say the least, unlikely, so the Court will then proceed to a public hearing to consider the application “on the merits”, that is to say, to determine whether there has been a violation of the Convention. This whole process will take several years. And Kennedy and Keena will no doubt have to visit Strasbourg several times. But they should be satisfied with their visits, not only as tourists, but ultimately as litigants as well.

Putting blogging into perspective, via Alex:

Clive disappeared for a week to think about life. When he got back, Alex told him that his colleagues were worried.
Clive exclaimed: “But it was all on my blog. You mean you didn’t read it?”.
Alex replied: “No, of course not .. No one does .. Why would we?”.

For those interested in my earlier posts on free speech and national security and terrorism and speech, a new paper on SSRN: Free Speech, Terrorism, and European Security: Defining and Defending the Political Community by Shawn Marie Boyne (Indiana University School of Law | personal site) addresses the issues, building upon her earlier paper “The Criminalization of Speech in an Age of Terror ” (SSRN). The abstract of the new paper provides:

In this paper I examine the impact that the struggle against terror has had on free speech protections in three European states [more precisely: the ECHR, the EU, and at member state level]. Specifically, I argue that prosecutors have overbroadly interpreted and expanded the definition of laws designed to target individuals who provide material support to terrorists. As a result, some prosecutions undertaken by European states threaten to undermine the core democratic value of free speech. By analyzing specific cases, I explore how some liberal democratic states have chosen to navigate the tension between security and liberty that Hannah Arendt [pictured, above left] referred to as the “crisis of authority.” Although I discuss each state’s relevant legislation, my primary focus is to draw distinctions and comparisons between the three countries based on recent cases that attempt to criminalize speech. This approach will allow me to assess the pulse of free speech in several democratic states that face significant terrorism threats.

Reform of the UK’s libel laws could have interesting consequences for Irish law. A cartoon from a story in this week’s Economist sets the scene:

A few extracts from the article accompanying the above cartoon:

Improving a reputation

England’s strict libel laws face a shake-up

Selling legal services to people in other countries is a lucrative business for Britain, but where the libel industry is concerned the trade is increasingly unwelcome. Foreigners can sue each other in English courts, even when publication has been almost wholly elsewhere. .. For foreigners and locals alike, mounting a defence is costly and tricky. …

The fear of libel suits may chill academic debate (big medical companies have sued several scientists for criticising their products). Outfits campaigning against beastly regimes abroad say they have had to defang their reports because of the threat of litigation.

Many want the law to be fairer, simpler, quicker and cheaper. … Anthony Lester QC … submitted a private member’s bill which would make most of the important changes that reformers have been seeking. One would replace the flimsy “fair comment” defence (which easily gets tied up in questions of fact) with a new one of “honest opinion”. … A second change would replace the “responsible publication” defence, which puts more weight on procedure than substance, with one of “public interest”. … A third part of the bill would make it harder for corporate bodies to sue. Moreover, any foreign claimant would have to show that he had suffered “substantial harm” in England. …

Lord Lester’s Bill is available here, analysed on Banksy’s blog and on Inforrm’s blog; a note of caution is sounded by Zoe Margolis whilst Paul Tweed is critical. Though important, the Bill is simply one part of the current conversation about libel reform in the UK. Another important part is the difference of opinion between two retired Law Lords (Hoffmann and Steyn).

Of course, be careful what you wish for. In Ireland, the Defamation Act, 2009 has reformed our libel laws. However, by the time it had worked its way through the Department of Justice and the Oireachtas, it was considerably watered down by departmental conservatism and political compromise; but now that it has been enacted, there is little political will for further reform. Lord Lester’s bill is carefully drafted; but if it suffers the same fate as the Irish bill did, it may not achieve its intended end, and the opportunity may be lost.

Finally, if Lester’s Bill, or some recognisable version of it, becomes law, then English law will have achieved a better balance in defamation law than Irish law does. It could also have profound effects on the future of Irish defamation law. The 2009 Act it is an incomplete reform: its new centerpiece defence of fair and reasonable publication is unworkable; its changes relating to damages are very timid; it confirms that corporations can sue for damages; and it does nothing to prevent libel tourism (the phenomenon of plaintiffs touring for the most congenial legal climate in which to take a libel action). Ireland would then be faced with the following choice. Dublin could replace London as the libel tourists‘ most favoured destination; or we could introduce similar amendments ourselves. It will be interesting to see how all this pans out.

On 19 May 1760, Lord Mansfield (left) delivered judgment in the famous case of Moses v Macferlan (1760) 2 Burr 1005, 97 ER 676, [1558-1774] All ER Rep 581, [1760] EngR 713 (19 May 1760) (warning: pdf; an unofficial html is here).

Much of the modern law of restitution has been constructed upon the foundations which he laid down:

If the defendant be under an obligation, from the ties of natural justice; to refund; the law implies a debt, and gives this action, founded in the equity of the plaintiff’s case, as it were upon a contract (“quasi ex contractu,” as the Roman law expresses it).

This species of assumpsit, (“for money had and received to the plaintiffs use,”) lies in numberless instances, for money the defendant has received from a third person; which he claims title to, in opposition to the plaintiff’s right; and which he had, by law, authority to receive from such third person. …

This kind of equitable action, to recover back money, which ought not in justice to be kept, is very beneficial, and therefore much encouraged. It lies only for money which, ex aequo et bono, the defendant ought to refund: it does not lie for money paid by the plaintiff, which is claimed of him as payable in point of honor and honesty, although it could not have been recovered from him by any course of law; as in payment of a debt barred by the Statute of Limitations, or contracted during his infancy, or to the extent of principal and legal interest upon an usurious contract, or, for money fairly lost at play; because in all these cases, the defendant may retain it with a safe conscience, though by positive law be was barred from recovering. But it lies for money paid by mistake; or upon a consideration which happens to fail; or for money got through imposition, (express, or implied;) or extortion; or oppression; or an undue advantage taken of the plaintiff’s situation, contrary to laws made for the protection of persons under those circumstances.

In one word, the gist of this kind of action is, that the defendant, up on the circumstance of the case, is obliged by the ties of natural justice and equity to refund the money.

Two hundred and fifty years later, to the very day, the American Law Institute – a leading independent organization in the United States producing scholarly work to clarify, modernize, and otherwise improve the law – approved a new Restatement of the Law Third, Restitution and Unjust Enrichment. It is the fruits of fourteen years’ work, under the wise leadership of Prof Andrew Kull, Paul M. Siskind Research Scholar and Professor of Law at Boston University School of Law. When published later this year, it will replace the original Restatement of the Law of Restitution promulgated in 1936. On the ALI’s blog, Scott Maravilla recorded the historic moment in this way:

The Boskey Amendment approving the Restatement of the Law (Third) on Restitution and Unjust Enrichment passed unanimously. The historical significance was not lost with references to Lord Mansfield. There was large amounts of well deserved praise for Andrew Kull. John Cameron of Michigan praised Kull ‘s leadership. Boskey called the Restatement

a remarkable piece of work for which we are all grateful to the Reporter.

Kull received a standing ovation from the room for his work. In a lighter moment, as the proceedings were moving to a close, Douglas Laycock called to the attention of the floor that the membership hadn ‘t yet voted. Everyone then voted unanimously.

This is a momentous achievement. It has taken profound legal scholarship, adroit drafting skills, superhuman reserves of energy and patience, and virtuoso leadership. Andrew Kull has accomplished the extraordinary, and I am in awe of his outstanding success, all the more historic for the date on which it occurred.

The second Annual Report of the Press Council and the Office of the Press Ombudsman (pdf) was launched yesterday. Speaking at the launch, Dermot Ahern, the Minister for Justice, Equality and Law Reform, announced that he had, on 21 April, signed the Order granting the Press Council of Ireland recognition as the Press Council for the purposes of the Defamation Act, 2009. The full text of the Defamation Act 2009 (Press Council) Order 2009 (SI No 163 of 2010) (pdfs here and here) is as follows [with added links]:

Defamation Act 2009 (Press Council) Order 2009 (SI No 163 of 2010)

I, Dermot Ahern, Minister for Justice, Equality and Law Reform, being satisfied that The Press Council of Ireland complies with the minimum requirements specified in Schedule 2 to the Defamation Act, 2009 (No 31 of 2009), hereby, in exercise of the powers conferred on me by section 44 of that Act, make the following order with respect to which, pursuant to subsection (7) of that section, a draft has been laid before each House of the Oireachtas and a resolution approving of the draft has been passed by each such House:

1. This Order may be cited as the Defamation Act 2009 (Press Council) Order 2010.

2. It is declared that The Press Council of Ireland shall be recognised for the purposes of the Defamation Act 2009 (No 31 of 2009) as the Press Council.

Given under my Official Seal,
21 April 2010.

DERMOT AHERN,
Minister for Justice, Equality and Law Reform.

This is a very important development. It completes the process of recognition for the Press Council under the 2009 Act; it allows the press to participate fully in the Press Council system; and it affords complainants a quick and easy form of redress.

Media reports of the launch focussed on other issues: Ahern criticises media’s Oireachtas coverage (Irish Times); Ahern concerned over press intrusion (Irish Times); Most of 351 complaints against press about truth and accuracy (Irish Times); Press report (Editorial, Irish Times); Ahern lays down the law on Twitter and Facebook lies (Irish Independent); Social media users ‘not exempt from defamation laws’ (Irish Examiner); 5% increase in complaints to Press Council (Irish Examiner).

Bonus link: Simon Singh, who will be speaking at the Science Gallery in TCD on Thursday evening, writes in today’s Telegraph that reform of libel law is long overdue, and in particular, that bolder defences are necessary for those writing about matters in the public interest.

On Thursday evening, from 6:30pm to 8:00pm, the Science Gallery in TCD will host what promises to be a fascinating event on the chilling impact of the law of libel on scientific debate:

Libel Chill with Simon Singh and Peter Wilmshurst

Libel reform has become increasingly relevant in scientific research and journalism in the UK and Ireland, as highlighted in recent times by the high profile case of Simon Singh. Libel laws have been accused of intimidating journalists, scientists and publishers into silence for fear of legal persecution. The effect has been dubbed “libel chill” and the Libel Reform Campaign argues ‘Freedom to criticise and question, in strong terms and without malice, is the cornerstone of argument and debate, whether in scholarly journals, on websites, in newspapers or elsewhere. Our current libel laws inhibit debate and stifle free expression. They discourage writers from tackling important subjects and thereby deny us the right to read about them.’

Master of ceremonies for the evening will be Myles Dungan, and speakers will include Simon Singh, who successfully defended a two year libel battle with the British Chiropractic Association, and his lawyer Robert Dougans. Cardiologist Peter Wilmshurst who is currently being sued for libel in the biggest ongoing medical libel case, and his lawyer Mark Lewis, will also speak at the event.

There will be much discussion of amending the libel laws. For once, Irish law is ahead of the curve. The Defamation Act, 2009 eventually reformed Ireland’s outdated libel laws (though, of course, more could have been done). English law is likely soon to follow suit.

Today’s Times Online carries a very important article by Anthony Lester (Lord Lester of Herne Hill, QC, human rights lawyer, free speech campaigner, Lib Dem peer, and Adjunct Prof of Law, UCC) argues that England’s law of libel must be rebalanced in the scales of justice, since it has a chilling impact on free speech, which is the lifeblood of democracy. English libel law, he says, “is notoriously costly, complicated and stifling of free speech”. The programme for government for the UK’s new government promises to “review libel laws to protect freedom of speech”. Lester therefore proposes to publish on Thursday (just in time for the Science Gallery event) a Private Member’s Bill on Defamation to help in that review. An Editorial in the Times urges the UK’s government to “seize Lord Lester’s template of legal sanity” which thoroughly “deserves to become law”. It is the latest step in an ongoing campaign for reform of the UK’s libel laws, and it is discussed by Lester on BBC radio’s Today programme this morning. Listen, and then buy a ticket for Thursday’s event.

I’m sorry not to have been able to acknowledge the celebration of AFAF‘s International Academic Freedom Day on the day itself by a wonderful blog carnival on the right to learn, ably convened by Deirdre Duffy, and hosted by the ever-wondrous Human Rights in Ireland blog. I’ve blogged on academic freedom on many previous occasions (see especially here and here), and I’d like here look at some of the Irish legal aspects of the issue.

Section 14(1) of the Universities Act, 1997 (also here) provides that Irish universities have “the right and responsibility to preserve and promote the traditional principles of academic freedom” in the conduct of their internal and external affairs, and that they are entitled to regulate their affairs in accordance with their “independent ethos and traditions and the traditional principles of academic freedom”. This is an important guarantee of institutional autonomy, and is a sine qua non for the right of academics to teach, research, publish and participate in public debate without fear of retribution from their institutions. That right is secured by section 14(2) of the Act, which provides:

A member of the academic staff of a university shall have the freedom, within the law, in his or her teaching, research and any other activities either in or outside the university, to question and test received wisdom, to put forward new ideas and to state controversial or unpopular opinions and shall not be disadvantaged, or subject to less favourable treatment by the university, for the exercise of that freedom.

This is why, to take the example presented by Rod Thornton in his contribution to the NRinI carnival, research and teaching about terrorism are protected, even as Beshara Doumani‘s edited collection Academic Freedom after September 11 (University Of Chicago Press, 1998 | Amazon) demonstrates the increasing antithetical pressures.

Article 13 of the Charter of Fundamental Rights of the European Union provides that “The arts and scientific research shall be free of constraint. Academic freedom shall be respected”. (more…)