Month: October 2012

Further to my post on fighting anonymity with anonymity: open justice and cyberbullying and the tragedies of Amanda Todd, Ciara Pugsley, and Erin Gallagher, RTÉ news reports that a national youth organisation, SpunOut.ie, has issued guidelines on how to combat cyber and text-bullying:

If you are experiencing this form of bullying, it’s vital you don’t suffer in silence. Also, if you have witnessed cyberbullying, it’s important that you take action and address the problem.

Read the Office for Internet Safety’s Guide to cyberbullying, which includes information on when and how to contact service providers if you are being cyberbullied.

Two key pieces of advice from the SpunOut.ie page:

• Don’t reply to the messages, but don’t delete them either: save them as proof.
• Don’t stay quiet about the bullying: tell someone you can trust and who can help you and give you support.

(more…)

In my previous post, I discussed a temporary injunction obtained by music promoter David Kavanagh to prevent the sale of Melanie Verwoerd‘s memoir When We Dance. The book charts her Afrikaner upbringing, her marriage to the grandson of an architect of apartheid, her anti-apartheid involvement with the African National Congress, her time as South African ambassador to Ireland and as head of UNICEF Ireland, and her relationship with celebrity DJ Gerry Ryan until his unexpected death on the night of 29 April 2010.

When the matter was due to return to the High Court, Laffoy J was told that it had been settled on the basis of a statement which would be read out in court and would be inserted as an erratum slip into the books when they go on sale (see Irish Independent | Irish Times).

The statement said that Ms Verwoerd was happy to acknowledge that Mr Kavanagh was and remained a good friend of Gerry Ryan, that it was to Mr Kavanagh that Gerry turned for help shortly before his untimely death, and that Mr Kavanagh had indicated he would help in whatever way he could to alleviate the financial pressure on Gerry. The statement added: “Melanie Verwoerd does not and never has suggested that Mr Kavanagh behaved in any way inappropriately on April 29, 2010”.

I’m glad that the book is now on sale, but the interesting legal questions raised in my previous post remain unresolved. We shall have to await another case to learn the precise extent to which the high hurdles set by section 33(1) of the Defamation Act, 2009 (also here) will actually be applied even to interim and interlocutory applications such as the one made by My Kavanagh in this case. The parties to this litigation danced a stately gavotte, but I can foresee circumstances in which the application might have the character of a more frenetic quickstep, and clear judicial guidance will be necessary if decisions are not to be taken out of (dub)step with the Act.

I have written before on this blog about prior restraints and temporary and permanent injunctions in defamation cases. Not long after the South African Constitutional Court effectively outlawed prior restraint in that jurisdiction (see Print Media South Africa v Minister of Home Affairs [2012] ZACC 22 (28 September 2012); blogged here), I learn that Gilligan J in the High Court in Ireland has today granted temporary injunctions to prevent the sale of a memoir written by the South African partner of a deceased celebrity Irish DJ (cover left):

Gerry Ryan biography will not go sale after court challenge
Melanie’s book on Gerry Ryan pulled off shelves in court row
Melanie memoir pulled from shelves
Publication of Gerry Ryan book delayed pending court action
Publication of Verwoerd book on Ryan restrained
Verwoerd book put on hold following court hearing
Verwoerd book put on hold following court hearing

Given the parties involved, it is unsurprising that there is intense media interest in the case. However, the legal issues are interesting too. Section 33 of the Defamation Act, 2009 (also here) provides:

(1) The High Court … may, upon the application of the plaintiff, make an order prohibiting the publication or further publication of the statement in respect of which the application was made if in its opinion—
(a) the statement is defamatory, and
(b) the defendant has no defence to the action that is reasonably likely to succeed.

Paragraphs (a) and (b) set a relatively high threshold which a plaintiff has to meet before an order prohibiting publication can be made. Since subsection (3) says that “order” in sub-section (1) includes interim (s33(3)(a)) and interlocutory (s33(3)(b)) orders, then the only jurisdictional basis on which Gilligan J could have granted an interim order this morning would have been if he had been satisfied that the high threshold set by paragraphs (a) and (b) of s33(1) had been cleared. Moreover, it is clear that section 33 has to be interpreted in the light of the protections of freedom of expression by the Constitution and the European Convention on Human Rights. In particular, since such a temporary injunction constitutes a prior restraint upon speech, applications for interim or interlocutory injunctions in defamation cases must be scrutinised with particular care. To take only one example from many, in Evans v Carlyle [2008] 2 ILRM 359, [2008] IEHC 143 (08 May 2008) Hedigan J held that a court should grant an order pursuant to section 33

… warily and cautiously. It should bear in mind the importance and centrality of freedom of expression in the democratic process. The right to freedom of expression is protected both by Article 10 of the European Convention on Human Rights and by Article 40.6.1. of the Irish Constitution. The court, therefore, should be very slow to restrict, either prior to or after publication, the continuing exercise of this right.

Gilligan J declined to grant the orders sought by the plaintiff ex parte yesterday evening, insisting that the defendants be put on notice of an application this morning, when they consented to an order prohibiting publication, sale or distribution of the book until the matter comes back before the court on October 24. At that stage, to maintain the order, the plaintiff will have to establish that the high threshold set by section 33(1) has indeed been cleared, and it will be very interesting indeed to see if he succeeds in doing so.

Last week, the Minister for Education and Skills, Ruairí Quinn, announced his intention to “introduce new legislation which will oblige universities to comply with government pay policy”:

Some €7.5 million in unapproved and unauthorised payments paid out by universities from 2005-2009

The Minister for Education and Skills has secured government agreement for the drafting of an amendment to the Universities Act 1997. This amendment will give the Minister the power to require universities to comply with government guidelines on remuneration, allowances, pensions and staffing numbers in the University sector. It will further address issues which have arisen in relation to the non-adherence to elements of the Croke Park Agreement. …

The heads of the relevant Bill are here (pdf), and they are discussed as follows on Steve Hedley‘s Ninth Level Ireland blog:

Universities behaving badly? Send in the clowns!

… The focus is on compliance with a “policy decision made by the Government or the Minister in so far it relates to the remuneration or numbers of public servants employed in that university, or a collective agreement entered into by the Government or the Minister”. The powers now given to the minister are: (1) To make a direction requiring compliance; (2) To send in an investigator to check on compliance and make a report; (3) On receipt of such a report, to make a specific direction to the institution reported on; and (4) If the minister considers that there is non-compliance or “serious deficiencies” in the area, to transfer university functions in that area to someone of the minster’s choosing. This transfer can be for up to 2 years.

… the result is a dog’s breakfast of provisions, which makes it entirely unclear where responsibility for hiring policy lies. A university may appoint “such and so many persons to be its employees as it thinks appropriate, having regard to” a number of matters (Universities Act, 1997, s.25(1) [the Act is linked and summarized here]). One of the things it must “have regard to” is guidelines from the HEA, but that does not mean it must do what the HEA says – the guidelines are explicitly stated to be non-binding, and the government cannot make compliance a condition of the receipt of public money (s.50(2)). Yet under the new legislation, the university must comply with a “policy decision” in respect of numbers (new s.20A(2)), and any ministerial “direction” on the matter (new s.20C(2)). (Presumably the Employment Control Framework is one such policy, even though it did not emanate from the DES, and presumably the minister’s expressed opinion about what it requires are “directions”, even if others have different opinions.) There is no mention of the HEA in that part of the new legislation – the minister need not even tell the HEA what he is up to, let alone consult them in a meaningful way. If this legislation is in place, it is entirely unclear who has responsibility for the size or shape of the universities. Perhaps that is the idea.

… a great deal more thought will have to go into … [the Bill] if the result is not to be chaos.

In the Minister’s press release, this was described as a set of “practical and proportionate remedies”. For the reasons Steve gives, I don’t think that it is.

Say you are a 15-year old girl. What would you do if you find a fake Facebook profile which contains a photograph of you, a slightly modified version of your name and other particulars which identified you, which discusses your physical appearance and weight in derogatory terms, and which includes scandalous sexual commentary about you? First, you’d contact Facebook, to have the fake profile taken down and to identify the IP address associated with it. Facebook take safety and security very seriously, especially where minors are concerned, and once they have verified the cyberbullying, they will no doubt be quick to help you out. Once you have the IP address, you can identify the relevant ISP, and ask them to reveal the names of the users associated with it, perhaps to identify potential defendants for an action in defamation or invasion of privacy. But what if Facebook or the ISP decline, and require you to get a court order before they give you that information. At this point, you run into a problem. Since justice is administered in public, you will have to disclose your identity and the facts surrounding the cyberbullying if you are to succeed in your claim against the Facebook or the ISP. So, you decide to ask the court if you can bring the claim anonymously.

If you made that application in Ireland, it is not clear whether you would succeed. In Mc Keogh v John Doe [2012] IEHC 95 (26 January 2012), Peart J had made ex parte interim orders prohibiting publication of or concerning a YouTube video clip and accompanying text. The clip showed a passenger running from a taxi without paying his fare, and the accompanying comments falsely identified the passenger as the plaintiff.* In this further application, the plaintiff sought similar orders against newspapers which were not parties to the earlier proceedings but which had reported on them. His application failed (update (16 May 2013): it failed at that stage; however, the case is continuing, and further similar applications seem to be meeting with more success). Peart J held that that a litigant does not have any right to anonymity in relation to court proceedings since justice must be administered in public under the Constitution, even in cases where, like the plaintiff, a party has genuinely believed that his or her right to privacy and good name would be breached if his or her involvement as a party to the proceedings became public knowledge (following Roe v The Blood Transfusion Service Board [1996] 3 IR 67 (Laffoy J) and Re Ansbacher (Cayman) Limited [2002] 2 IR 517, [2002] IEHC 27 (24 April 2002) (Clarke J)). Since the newspapers’ reports were a consequence of the administration of justice in public, he refused the plaintiff’s application. Indeed, he went further:

I should say that the plaintiff at no time sought to institute these proceedings in a way that does not disclose his identity, and did not make any application on the 11th January 2012 that his name should not be disclosed in any reporting of the application or the proceedings. That was not due to any oversight on his part or on the part of his legal team. Indeed, there is something counter-intuitive about the idea that a person who seeks reliefs from the Court aimed at vindicating his good name, by way of damages or otherwise, would seek to do so anonymously.

(more…)