Month: July 2010

Some stuff I’ve come across online recently has reminded me of the New York indie rock band, Vampire Weekend, not only the high-profile controversy over the “frustrating” lawsuit against them by a model who claims that they did not have her permission to use an image of her on their “Contra” album cover, but also the lyrics of their 2008 single “Oxford Comma” (pictured left; see background | lyrics | music | YouTube). The Oxford comma is an optional comma before the word ‘and’ at the end of a list; in the song, it’s a metaphor for unnecessary pretention in interpersonal relationships; and in its grammatical meaning it has recently been the focus of discussion by pedants, geeks, and drafters.
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Recent press releases from the Press Council of Ireland have announced two key appointments. Retired diplomat Daithi O’Ceallaigh has been appointed as Chairman of the Press Council from 1 August, succeeding Prof Tom Mitchell (Irish Independent | Irish Times); and retired academic Prof John Horgan has been appointed to a second term as Press Ombudsman from 1 September (Irish Times). Both appointments are for three years. Following the recent recognition of the Press Council for the purposes of Schedule 2 to the Defamation Act, 2009, these appointments are set fair solidify the position of the Ombudsman and the Council in their work to safeguard and promote professional and ethical standards in Irish newspapers and periodicals. The time my therefore be ripe for some hard questions.

The UK’s sister organisation to the Press Council, the Press Complaints Commission, has recently completed a thorough and independent review of its governance. The report published earlier this month (pdf) recommended that there should be:

• A clearer role for the Commission;
• Tougher scrutiny rules;
• More industry engagement with the Commission;
• A stronger Board;
• A stronger lay voice on the content of the Editors’ Code of Practice;
• Greater transparency about appointments;
• Greater openness about the system; and
• More rigorous examination of performance.

These are all very welcome suggestions – even if they could have been supplemented – and they could equally be made with respect to the Press Council of Ireland. It should not rest on its laurels; rather, the incoming Chairman and Ombudsman should commission a similar review, at least in part to work out if it is possible to divert some high-profile libel cases from the courts. For example, it was recently reported that businessman Denis O’Brien has threatened to sue journalist Sam Smyth over comments Smyth made in his newspaper column and on television concering O’Brien’s travails with the Moriarty Tribunal. It is interesting that O’Brien is threatening to sue only Smyth, and not the newspaper or television station in question. That being so, making a complaint about the newspaper comments would be a perfect case for the Press Council, and if the case proceeds in the courts instead, it raises questions about whether anything needs to be done to encourage such cases away from the courts. That alone is a sufficient reason for a review of the work of the Ombudsman and Press Council as the incoming Ombudsman and Chairman begin their terms of office.

Two recent cases in the European Court of Human Rights demonstrate that there are still large gaps in the protection of freedom of expression in Turkey.

Terrorist speech
In Gözel and Özer v Turkey (43453/04 and 31098/05; 6 July 2010 | judgment (in French); press release (in English)), a Turkish magazine published an article that contained a statement by the central committee of the banned Marxist-Leninist/Turkish Communist Party. Another published an article about the founder of the Marxist movement in Turkey which included a statement by eight people who were in custody for belonging to illegal organisations. The editors of both magazines were convicted of pubishing statements of illegal armed organisations.

The ECHR noted that the editors had been convicted for publishing texts that the domestic courts had characterised as “terrorist organisation statements” without taking into account their context or content, and held that to condemn a text simply on the basis of the identity of the author would entail the automatic exclusion of groups of individuals from the protection afforded by Article 10. It therefore concluded that since the opinions expressed did not constitute hate speech or stir up violence, the Respondent was not entitled to rely on national security to restrict the public’s right to receive information, and that Article 10 had therefore been breached.

In Ireland, the leading Supreme Court decision in this area is the deeply flawed The State (Lynch) v Cooney [1982] IR 337 upholding the infamous section 31(1) of the Broadcasting (Authority) Act, 1960 [(also here), as amended by section 16 of the Broadcasting Authority (Amendment) Act, 1976 (also here), ultimately repealed in 2001] (discussed on this blog here | here | here). On foot of the powers in that section, the Minister had proscribed the access of paramilitaries to the airwaves, and this extended to preventing an election broadcast by a candidate in a party associated with a paramilitary organisation. That association, effectively the mere identity of the candidate, was sufficient to allow the ban to be upheld. O’Higgins CJ held that the use of the media for the purpose of securing or advocating support for organisations which seek by violence to overthrow the State or its institutions is a use which is prohibited by the Constitution. This must now be questionable in the light of Gözel and Özer.

Academic Freedom
In Sapan v Turkey (44102/04; 6 July 2010 | judgment (in French); press release (in English) | h/t Strasbourg Observers), the applicant published a book on the emergence of stardom as a phenomenon in Turkey. It was based upon his doctoral thesis, and it focussed in part on a well-know pop singer. The Turkish courts held that, since the book addressed subjects related to the singer’s personal life rather than his public persona, it had infringed his personality rights. An interim order that the book be seized was eventually lifted after two years and eight months, but the singer’s damages claim was allowed to proceed.

The ECHR emphasised the importance of academic freedom, and it considered that the book was a serious academic analysis of the social phenomenon of stardom which could not be compared with the tabloid press or gossip columns. It therefore held that there were no relevant or sufficient and reasons to justify the seizure of the book, and that Article 10 had therefore been breached.

In an earlier post, I placed the terms of section 14(1) of the Universities Act, 1997 (also here) in the context of US and ECHR decisions on academic freedom, in particular the decision of the ECHR in Sorguc v Turkey 17089/03, [2009] ECHR 979 (23 June 2009). This is a very significant judgment in the development of this important right. In particular, it re-inforces the argument that, since academic freedom is protected under the ECHR as an aspect of Article 10, it should by analogy be protected under the Irish Constitution as an aspect of the right to freedom of expression in Article 40.6.1(i), or of the right to communicate protected by Article 40.3, or even as an unenumerated right located in Article 40.3.

Prof Adrienne Stone (pictured left), Director of Centre for Comparative Constitutional Studies in the Melbourne Law School has just made a very interesting article available on SSRN. It is The Comparative Constitutional Law of Freedom of Expression, forthcming as a chapter is in Rosalind Dixon and Tom Ginsburg (eds) Research Handbook in Comparative Constitutional Law (Edward Elgar, forthcoming, 2011). Stone argues:

Freedom of expression is among the most widely protected of constitutional rights. Rights of freedom of expression can be found in constitutions drawn from all continents. … Even in those few democracies without comprehensive constitutional protection of rights, freedom of expression finds constitutional protection in other ways. It can plausibly be argued that parliamentary systems … – even in the era before the adoption of charters of rights – recognized a constitutional principle of freedom of expression that, though not enforceable by judicial review, was understood as a fundamental value that informed the reading of statutes and the common law. In addition, there are some legal systems that recognize a judicially enforceable principle of freedom of expression despite the absence of a written constitutional right.

… some scholars … question whether … the comparing free speech principles across constitutional systems is practical or useful for courts interpreting or applying constitutional principles of freedom of expression … The complexity of (and disagreement about) underlying philosophical commitments, the opacity of judicial decision making, and cultural specificity of any particular body of law, … [are] formidable problems for the comparativists, … and the] case for comparativism may be weaker in relation to constitutional principles have developed their own rich set of resources and a distinctive conception of freedom of expression. This latter description fits the First Amendment most neatly … [B]ut, outside of such contexts, the case for comparativism is much stronger. It is not surprising, then, that constitutional comparativism in freedom of expression cases as well as in other areas [is] certainly very widespread. … Successful comparativism within the field of freedom of expression, as elsewhere, requires a rather deep and critical engagement with foreign law that encompasses critical legal and philosophical literature on freedom of expression as well as case law. There is thus an increasing need for a research ‘infrastructure’ of informed, critical and widely comparative studies of freedom of expression that can support this comparative task.

I entirely agree with that last sentence. But that is the last sentence of the paper, suggesting that Stone is skeptical about the present existence of such an infrastructure. She does not need to be. In my view, there is a basic pattern of analysis when a right protected by a document of fundamental status (such as a Constitution or the European Convention of Human Rights) is potentially infringed or restricted by a statutory provision. It consists of four enquiries.

First, consider the restriction. Without a provision that infringes upon a constitutional right, there would be no need for this analysis.

Second, consider what rights the restriction might infringe. If speech rights are involved, then, in Ireland, that will be the right to express freely convictions and opinions Article 40.6.1.i of the Constitution, the (unenumerated) right to communicate in Article 40.3.1, or the right to freedom of expression, including the freedom to hold opinions and to receive and impart information and ideas, in Article 10(1) of the European Convention on Human Rights.

Third, since no right is an absolute, consider whether there are good reasons for the restrictions. The text of Article 40.6.1.i provides at least six: public order, morality, the authority of the State, blasphemy, sedition and indency; Article 40.3.1 protects rights only “in so far as practicable”; and the rights in both sections have been made subject by the judiciary to the exigencies of the common good. Article 10(2) has an extensive list of reasons for restrictions necessary “for the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”. Any restriction must therefore pursue one of the iterated good reasons or “legitimate aims”, and that aim must be a serious one – there must be a “pressing social need” on the facts to trigger the trigger the relevant good reason legitimate aim. If there is no such good reason, legitimate aim, or pressing social need, then the restriction upon the relevant speech right will be unconstitutional or incompatible with the Convention.

Fourth, it is not enough that the State can simply point to one of the recognised good reasons justifying restrictions; it must also demonstrate that the restriction does not go too far. In other words, the restriction must survive a standard of scrutiny or review. In Ireland, the Supreme Court has established that a restriction upon a constitutional right must be proportionate to the reason underlying it, a standard which is informed by the approach of the European Convention on Human Rights.

As a matter of principle then, a four-part analytical structure can be identified: if there is a restriction upon the right to freedom of expression, the State must have a good reason to justify the restriction which can withstand scrutiny or review. These four Rs of constitutional review can easily provide the foundation or context of the research infrastructure of informed, critical and widely comparative studies of freedom of expression quite-rightly envisaged in Stone’s excellent article.

As prefigured here a little while ago, there is a new peer-reviewed Irish legal journal, the Irish Journal of Legal Studies. The publication of Volume 1, Issue 1, 2010 has just been announced on the journal’s homepage, and the contents of the first issue are as follows:

Sexual Violence: Witnesses and Suspects, a Debating Document by Mr Justice Peter Charleton and Stephen Byrne. From the abstract:

This article explores the rules of evidence and criminal procedure as they apply in sexual offence cases, in the context of recent empirical accounts of attrition rates in sexual offences, and having regard to the rights of the accused and the need to maintain a fair balance that limits the potential for injustice.

The Constitution and the Protestant Schools cuts Controversy: Seeing the Wood for the Trees by Eoin Daly. From the abstract:

This article argues that special financial arrangements for Protestant secondary schools, recently controversially withdrawan, constituted a species of constitutionally permissible, if not constitutionally required, accommodation of religion. This controversy also serves as a prism through which to view the broader limitations of the constitutional framework for the guarantee of religious freedom in the education context.

Managerialism in Irish Universities by Professor Steve Hedley. From the abstract:

This article considers the controversial concept of “managerialism” in modern Irish university law and practice.

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Antipsychotic Use in Nursing Homes: Human Rights and the Elderly by Dr Frances Matthews. From the abstract:

This paper describes challenging behaviour in older adults; possible responses to that behaviour, including medication; the nature and use of antipsychotics; the rights threatened by the administration of such drugs; and possible solutions.

Book Review: Alison Mawhinney Freedom of Religion and Schools: The Case of Ireland (Saarbrücken, VDM Verlag, 2009 | Amazon) reviewed by Dr Conor O’Mahony. From the pdf:

The curious nature of the Irish primary school system, where schools are titled “National Schools” and funded by the State, but are exclusively owned and managed by private bodies, has been the object of some comment and litigation over the years. Dr Mawhinney’s work has made the picture a little clearer for all concerned.

The Irish Journal of Legal Studies is run by members of the Law Faculty, University College Cork, and is generously supported by a grant from the National Academy for Integration of Research, Teaching and Learning. This is a superb development. Well done to all concerned!

Congratulations, and welcome. Comhghairdeachas, agus fáilte.

The School of Law, Trinity College Dublin is delighted to present a public lecture entitled

Financial Services Supervision in the EU after the Financial Crisis: The Proposed Role of the European Securities and Markets Authority

by Professor Reyes Palá, Professor of Commercial Law, University of Zaragoza and former deputy Director of the Spanish Securities Exchange Commission (CNMV).

The lecture will take place at 6:00pm next Thursday, 15 July 2010, in the School of Law, TCD (map here), and all are welcome.

Abstract

In the 1980s, the European Community established the pillars of the financial services single market (specially mutual recognition of prospectuses in cases of IPOs and admission to listing, UCITs and a basic financial services legal framework). But the regulation was incomplete, fragmentary and didn’t achieve the freedom of financial services across Europe. At the beginning of the 21st century the Commission promoted an ambitious programme, endorsed by the Council and the Parliament, in the financial services area.
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When I was growing up, I read a children’s book called The Arabian Nights, an innocent version of the Islamic classic One Thousand and One Nights. Perhaps surprisingly, a group of Egyptian lawyers has recently called for a ban of a newly-released version of the Nights, on the grounds that it is “obscene” and could lead people to “vice and sin”. At the same time, another Egyptian group has called for a ban on the controversial novel Azazeel (Beelzebub) by Youssef Ziedan, which won the 2009 International Prize for Arabic Fiction. And, irony of ironies, just in time for Bloomsday, a manga comic book version of James Joyce’s novel Ulysses had almost been banned from the Apple App Store for obscene images, but Apple then relented, and reversed its earlier decision to remove panels containing nude images, though it still continues to reject less famous apps.

These examples of censorship of literature on the grounds of obscenity are simply the latest instances of a long and dishonourable tradition. In an earlier post, I considered whether Lady Chatterley’s Lover is obscene. In Akdas v Turkey 41056/04 (15 February 2010) (judgment in French; press release in English), the European Court of Human Rights was faced with a similar question earlier this year, when it had to consider whether a Turkish ban on Guillaume Apollinaire‘s Les Onze Mille Verges (or, The Eleven Thousand Rods) was consistent with Article 10 of the European Convention on Human Rights. It held that the ban infringed Article 10 (see see ECHR Blog | Guardian | Inforrm | Strasbourg Observers). However, the reasoning by which it reached this eminently sensible conclusion could have profound consequences for states attempting to rely on “the protection of morals” in Article 10(2) to justify restrictions on speech otherwise protected by Article 10(1).

In Handyside v UK 5493/72, [1976] ECHR 5, (1976) 1 EHRR 737 (7 December 1976), the first case on Article 10, the Court took a broad view of what was protected by Article 10(1), but when it came to whether a restiction could be said, in terms of Article 10(2) to be “necessary … for the protection of morals”, the Court held that there is no “uniform European conception of morals” (para 48), with the result that States were afforded quite a generous margain of appreciation to determine in the first instance whether a restriction was indeed necessary for the protection of morals. Subsequent cases have taken a similar approach, but Akdas v Turkey marks a signficant departure from this model.

Paying due obeisance to the Handyside approach, the Court nevertheless tempered it by observing that more than a century had passed since the first publication of the work in France, that it had thereafter been published in numerous countries in various languages, and it that had been inducted into the prestigious Bibliothèque de la Pléiade, now an imprint of Gallimard, a dozen years before being seized in Turkey. As a consequence, the Court held that reliance upon the margin of appreciation would not avail Turkey in this case (in Inforrm’s Blog translation):

[30] … the recognition given to the cultural, historical and religious singularities of member states of the Council of Europe cannot go so far as to prevent public access in a particular language, in this case Turkish, to a work which forms part of the European cultural heritage.

This concept of the European cultural heritage has the potential to act as a signficant check upon over-reliance on the morals exceptoin in Article 10(2). It is certainly a long way from the Handyside assertion that there is no uniform European conception of morals. As Maris Burbergs on Strasbourg Observers points out:

the Court states that the acknowledgment of the cultural, historical and religious particularities of the Council of Europe’s member States could not go so far as to prevent public access in a particular language, in this instance Turkish, to a work belonging to the European literary heritage. Accordingly, the application of the legislation in force at the time of the events had not been intended to satisfy a pressing social need.

Antoine Buyse on ECHR Blog goes further:

Thus, apparently, what has become part of the “canon of art” can no longer be prohibited within Europe. One may wonder what happens in cases where such works truly are offensive to large groups of people and also one may question who decides when a work becomes elevated to this European literary Olympus. Here the Court becomes an interesting player in the ongoing discussion on what is Europe’s common heritage!

Similarly, Inforrm’s Blog says that this conclusion has wide ranging implications:

Many readers of Eleven Thousand Rods will find the contents of the book highly offensive – as indeed did the French public at the time of its publication and for many decades later. When the book was published in England in the 1970s whole chapters were deleted and replaced by short descriptions of the violent acts which were described. The idea that, four decades later, any restriction on the publication anywhere within the Council of Europe States, whatever local sensibilities, is at first sight very surprising. The notion of the “European literary heritage” is one which lacks clear boundaries – certainly in countries which do not have the benefit of the “Pléiade” collection. The judgment does, however, show that contrary to the views of some English critics, the Court of Human Rights continues to take a robust view in “traditional freedom of expression” areas such as obscenity.

One way to test this rather fluid conception of the European literary heritage is to apply it to not just to European books like The Eleven Thousand Rods, Ulysses or Lady Chatterly’s Lover, but to non-European classics such as The One Thousand and One Nights or to important recent publications like Azazeel. If there is no substantive or qualitative difference between them, then the pressure will be on the Court to expand its notion of the European literary heritage, and to narrow the margin of appreciation afforded to member states when the seek to rely on the morals exception. This would be no bad thing.

I’ve just received news of the publication of the eagerly-awaited:

Unjust Enrichment and Public Law. A Comparative Study of England, France and the EU

by Rebecca Williams

This book examines claims involving unjust enrichment and public bodies in France, England and the EU. Part 1 explores the law as it now stands in England and Wales as a result of cases such as Woolwich v IRC [1993] AC 70 (HL) (pdf), those resulting from the decision of the European Court of Justice (ECJ) in Case C-410/98 Metallgesellschaft and Hoechst v IRC [2001] ECR I–4727, [2001] EUECJ C-410/98, [2001] Ch 620 (8 March 2001) and those involving Local Authority swaps transactions. So far these cases have been viewed from either a public or a private law perspective, whereas in fact both branches of the law are relevant, and the author argues that the courts ought not to lose sight of the public law issues when a claim is brought under the private law of unjust enrichment, or vice versa. In order to achieve this a hybrid approach is outlined which would allow the law access to both the public and private law aspects of such cases.

Since there has been much discussion, particularly in the context of public body cases, of the relationship between the common law and civilian approaches to unjust enrichment, or enrichment without cause, Part 2 considers the French approach in order to ascertain what lessons it holds for England and Wales. And finally, as the Metallgesellschaft case itself makes clear, no understanding of such cases can be complete without an examination of the relevant EU law. Thus Part 3 investigates the principle of unjust enrichment in the European Union and the division of labour between the European and the domestic courts in the ECJ’s so-called ‘remedies jurisprudence’. In particular it examines the extent to which the two relevant issues, public law and unjust enrichment, are defined in EU law, and to what extent this remains a task for the domestic courts.

Publication is timely as it comes on the eve of an important conference on Restitution of Overpaid Tax covering much the same territory.