Month: September 2012

Among many of its other activities and events, the Centre for Disability Law & Policy at NUI Galway (CDL&P) hosts an annual lecture series on the theme of Disability in the World. It has co-organised this year’s lecture with the National Council for the Blind of Ireland (NCBI), as an Inaugural Lecture in Honour of Christine Murphy-Whyte (bio here: .doc), on the topic

What does Equal Access to the Printed Word Mean in the Electronic Age? The Worldwide Process of Copyright Reform & Disability – the debate at the UN World Intellectual Property Organization.

It will be held in the Phelan Room of the National University of Ireland, 49 Merrion Square, Dublin 2 (map), at 6:00pm on Monday 8 October 2012.

The event will be chaired by Desmond Kenny, CEO of the NCBI; there will be a welcome from Dr Maurice Manning, Chancellor of the NUI; and Prof Gerard Quinn, Director of the CDL&P, NUIG, will introduce the keynote speaker:

Professor Justin Hughes, Cardozo Law School, New York, USA, and Senior Advisor to the Undersecretary of Commerce for Intellectual Property.

There will be brief responses from me, Samantha Holman, Executive Director of the Irish Copyright Licensing Agency, Eithne Fitzgerald, Head of Policy and Research at the National Disability Authority, and Abigail Rekas, EU Marie Curie Fellow at the CDL&P, NUIG, who has written a significant post on the Human Rights in Ireland blog, explaining the importance of the event (re-blogged here):*

Access to Books for Persons with Disabilities

… Accessible publishing historically has been an expensive proposition, performed by non-profit charitable organizations. These organizations are frequently working under an exception to copyright law, because they cannot afford to license the right to reproduce the book for such a limited run and do the translation into Braille or record the audio book.

The rise of digital technology has been a game changer for accessible publishing. … These new technologies have reinvigorated the debate at the international level over copyright exceptions and limitations and the sharing [o]f accessible books across international borders. There has been movement to create an international copyright treaty that would make exceptions for persons with disabilities mandatory for all signatory states. …

Attendance is free and open to anyone interested in the topic. However, numbers are strictly limited and spaces at the event are offered on a first come, first served basis, so please email the CDL&P by 4 October. The venue is fully accessible, but please explain any specific accessibility requirements when you make your booking.

This is an exciting event; I am greatly looking forward to it; and I hope to see you there.

* The paragraph with this asterisk was updated on 2 October 2012.

The drumbeats for privacy legislation can once again be heard around Leinster House. I did a radio interview with Matt Cooper on Today FM’s The Last Word yesterday evening; and I have an op-ed about it in today’s Irish Examiner:

Flawed privacy bill offers us no protection

… the bill is unnecessary to cover the publication of the topless photographs, as Irish law already provides a remedy. Worse, the bill goes too far in dealing with press invasions of privacy; and it fails to deal with many other important aspects of privacy. …

A privacy bill is necessary. However, the one being proposed by the minister is not it. It will need a lot of work if it is to protect our privacy properly.

Links: here are some links to the cases and materials to which I refer in the article:

The Privacy Bill, 2006 is here. An op-ed I wrote at the time is here.

The Minister’s Press Release is here.

I have blogged about the photograph of the GAA player, Sinnott v Carlow Nationalist, here, here, here, here, here, here, and here.

The nursing home case is Cogley v RTÉ [2005] 4 IR 79, [2005] IEHC 180 (8 June 2005).

The case relating to the priest’s affair is Herrity v Associated Newspapers [2008] IEHC 249 (18 July 2008)),

I blogged about the Minister’s comments last March here, republished here.

The revised Privacy Bill, 2012 introduced by Senator Norris is here.

The Data Protection Commissioner’s website is here.

CCTV in Ireland is overseen by the Department of Justice.

A model for the Privacy Commissioner discussed in the article is the Office of the Privacy Commissioner of Canada.

Bonus links: (i) other pieces in the Irish Examiner:

Colette Browne: Let’s dispense with hypocrisy over publication of Kate’s topless photos

Juno McEnroe: Shatter vows to put end to ‘creepy keyhole journalism’

Bonus links: (ii) similar pieces in the Irish Times:

Jennifer O’Connell: Fascination with Kate’s breasts and Karen’s clothes makes idiots of us all

Vincent Browne: Media continues to fail to hold powerful to account

Editorial 1: A discredited Bill

Editorial 2: DNA database

I think there is an irony in the alignment of these two editorials. I agree with the first editorial that the Privacy Bill is discredited and “a serious attack on the freedom of the press” which would “become a vehicle simply for the rich and powerful … secretly to muzzle press investigation”. But there is no recognition in the second editorial that a DNA database raises profound privacy concerns. A modern DNA database may indeed represent a necessary investment in crime detection, but it is also an example of the real challenges to privacy posed by the power of the State.

In my previous post, I argued that, as a matter of principle, the controversial American anti-Islamic video should not be censored. The most obvious form of censorship comes from government action, such as legislation banning speech, but that does not arise in this case. Less obvious, but no less insidious, was the White House request to Google to re-consider whether the video breached YouTube rules. This was not a formal ban, and Google declined to take the video down in the US, but it did block access to it in in Egypt and Libya. This raises two important questions about the structure of free speech. First, in the online world, where most of us access the internet through a range of intermediaries, government censorship does not necessarily need to target the disfavoured speech; it need only target the intermediaries. Very few US companies would feel able to decline a request like that from the White House, and Google are to be commended for standing firm in those circumstances. Second, these intermediaries now have a great deal of practical power over online expression – not only can they be co-opted by government as agents of state censorship, but they also have the capacity to act as censors in their own rights, as Google did in their unilateral action to block access in the Middle East.

Such intermediaries are effectively gatekeepers are those who enable – and control – our access to that information, and this raises profound issues of principle about the role of intermediary gatekeepers in the structure of free speech about which I have written on this blog (here | here | here). At present, such intermediary gatekeepers are all private entities, operating to their own rules, and it is not at all clear how they can be made accountable to their users or the wider public for their private actions. Given the practical, social and legal issues that arise in policing content in such a quasi-public sphere (pdf), it has been argued that search engines and other intermediaries should have public interest obligations, perhaps by analogy with common law duties that govern public utilities (pdf). In particular, free speech norms should not only be about protecting speakers against a heavy-handed state but also about protecting speakers and readers against heavy-handed intermediate gatekeepers. (more…)

Assassination is the extreme form of censorship.

George Bernard Shaw

Given my recent post about cross-border hate speech, I was unsurprised to find that freedom of expression is once again in the cross-hairs in the wake of the assassination last Tuesday of J Christopher Stevens, the US Ambassador to Lybia (pictured), and three of his colleagues. The attack seems to have been sparked by a controversial American anti-Islamic movie, and there have been calls for those responsible for the movie to face criminal charges. On the Opinio Juris blog, Peter Spiro [hat tip Volokh] seeks to chart a means by which this might be done in the US without running afoul of the First Amendment, making a point similar to that made by Banks and discussed in my earlier post:

And the First Amendment? Call me a relativist. We have some pretty good empirical data from the scores of other countries that ban hate speech (in part through signing on to article 20 of the International Covenant on Civil and Political Rights) that a permissive approach to hate speech is not a prerequisite to functioning democracy. On the contrary, our European friends would argue that democracy is better served by banning such material. Either way, our exceptionalism on this score doesn’t serve us very well.

In particular, he argues that the US Constitution should bend, and has bent, to international law, even when it implicates the constriction of rights (others make similar arguments). Hence, ratification of the ICCPR, and adoption of Article 20, without the existing reservation, would found a basis to limit the First Amendment and allow for the criminalisation of hate speech in the United States.

Mark Movsesian objects on several grounds. First, he points out that a ban on “hate speech” wouldn’t have applied to the movie in question, “which was not likely to incite violence against anyone, except perhaps the film’s producers” (who are still shrouded in some mystery). Instead, Movsesian thinks that the category Spiro is looking to circumscribe “is ‘offensive’ speech, specifically, speech that would offend listeners’ religious sensibilities”, which goes much further than US principles would probably be able to accommodate. Second, he argues that, in practice, a ban on religiously offensive speech would mean a ban only on speech that offends particular segments of Muslim opinion, and he wonders whether American public opinion really is ready for a rule that would forbid speech that offends the followers of only one religion.

We have been here before; no doubt, we will be here again. Whenever there is a tragedy, there are populist demands that something must done; and when the tragedy can be linked – however tenuously – with inflammatory speech, the something that is demanded to be done is often the penalisation of that speech. But this exactly the time when it is important to defend that speech, however hateful it is. Prescribing silence out of fear only engenders more fear, not safety. (more…)

The Irish Association of Law Teachers (IALT) Annual Conference will be held on 16-18 November 2012 at the Fitzpatrick Castle Hotel, Killiney, Dublin.

The theme of the conference is

Legal Scholarship and Judicial Reasoning: A Mutual Interaction.

I have explored this theme here in previous posts discussing papers by Judge Bryan McMahon and Lord Neuberger, so I am greatly looking forward to the conference. The IALT Kevin Boyle Book Prize will be awarded on the first night (Friday 16 November), and the AGM of the IALT will take place following lunch on Sunday (18 November).

Call for Papers
The call for papers for the conference is now open, and abstracts (maximum 300 words) are invited on any area of law. If you are interested in presenting a paper, please email your abstract to the President of the IALT, my TCD colleague Prof Deirdre Ahern, before Friday 19 October 2012, providing the following information: name, institutional affiliation, whether or not you are a member of the IALT, email address and contact phone number.

Conference Registration
All those attending the conference, including speakers, must pay the conference fee and make their own accommodation arrangements – the IALT has negotiated a preferential room rate at the hotel. To register for the conference and pay the conference fee, please fill in and return the conference registration form (download .doc) – there is an online payment mechanism available as well (scroll to the bottom of this page). The IALT is making

Postgraduate Scholarships for the Conference
The IALT will fund up to two postgraduate students to attend the Conference, covering conference fees, and travel and accommodation costs. Interested postgraduate students should submit a long abstract/summary of the paper they propose to deliver at the conference (minimum 1,000 words) by Friday 12 October 2012 (note that this is a week earlier than the closing date for 300-word abstracts in response to the call for papers, above).

James Banks (Sheffield Hallam University) has just published European Regulation of Cross-Border Hate Speech in Cyberspace: The Limits of Legislation (2011) 19 European Journal of Crime, Criminal Law and Criminal Justice 1-13 (SSRN | Ingenta). This is the abstract:

This article examines the complexities of regulating hate speech on the Internet through legal frameworks. It demonstrates the limitations of unilateral national content legislation and the difficulties inherent in multilateral efforts to regulate the Internet. The article highlights how the US commitment to free speech has undermined European efforts to construct a truly international regulatory system. It is argued that a broad coalition of citizens, industry and government, employing technological, educational and legal frameworks, may offer the most effective approach through which to limit the effects of hate speech originating from outside of European borders.

In particular, he considers that the Additional Protocol on Xenophobia and Racism (ETS 189) to the Council of Europe’s Convention on Cybercrime (ETS 185), whilst a laudatory endeavour, is undermined by US adherence to the First Amendment, so that “the law alone may not be the most appropriate mechanism through which to counteract hate speech online”. He therefore advocates recourse to a combination of technological regulation (eg, ISP self-regulation; voluntary filtering) and the education of web users to minimise the transmission and reception of online hate speech. He concludes:

By combining legal intervention with technological regulatory mechanisms – monitoring, IPS user agreements, user end software and hotlines – the harm caused by online hate can be diminished. Moreover, through the careful integra- tion of law, technology, education and guidance, a reduction in the dissemination and impact of online hate speech can be achieved without adversely affecting the free flow of knowledge, ideas and information online. As Bailey [“Strategic Alliances. The inter-related roles of citizens, industry and government in combating Internet hate” Canadian Issues, Spring (2006) 56 at 58] neatly summarises, ‘broad-based efforts involving strategic alliances among citizens, citizen coalitions, industry and government provide a strong foundation from which to engage in visible, publicly accountable action against cyberhate.’ For such an alliance to operate effectively, governments, businesses and citizenry must all engage in individual and collective solutions to minimising online hate speech.

If the right to freedom of expression means that the law cannot impose solutions to the problems associated with hate speech, then Banks is absolutely right to seek solutions elsewhere. However, his argument that technology can be used benignly to bring about changes in human nature and the human condition is a classic utopian solution. As such, it is both attractive in principle and unattainable in reality. As with Thomas More’s Utopia (from which the picture above left is taken), Banks’s call for a combination of technological regulation and the education of web users would certainly conduce to A Fruitful and Pleasant Work of the Best State of a Public Weal, it is just as unrealistic as More’s New Isle Called Utopia. There may be very well be a starting point in his suggestions, but we shall have to seek further if we are to find workable non-legal solutions to hate speech.