Eoin – cearta.ie

Taking the Santa out of Santander for £130m; putting the Santa into Citibank for $500m; and Fraiser’s Dad’s road to perdition – restitution of mistaken payments, again; and the defence of bona fide purchase

24 January, 2022

Banks are more often cast in the role of Scrooge than Santa; and, even when they start out in the latter role, they end up in the former.

For example, where over-active ATMs played Santa and permitted withdrawals of amounts greater than available funds or credit, the bank quickly became Scrooge, insisting that all money withdrawn by customers in excess of their balances will have to be repaid. Unlike in monopoly, you cannot retain the proceeds of a bank error in your favour. It’s not a gift either from God or from the bank. As I have explained many times on this blog, this is a mistaken payment, and the recipient must return it, unless there is a defence. And, if it is not returned, it could constitute theft.

Just before Christmas, Santander bank found itself first as Santa and then as Scrooge:

Bank accidentally deposits $176 million into people’s accounts on Christmas Day

Thousands of people received a surprise gift on Christmas Day this year when European bank Santander accidentally deposited £130 million ($176 million) across 75,000 transactions.

The mistake happened when payments from 2,000 business accounts in the U.K. were processed twice, meaning some employees saw their wages double, while suppliers also got more than they were expecting.

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Columba’s 1,500th birthday is a good day to note that Ireland has implemented the DSM Directive, (almost) the whole DSM Directive, and nothing but the DSM Directive

8 December, 202113 December, 2021

| 3 Comments

| COIPLPA, Columba, Copyright, CRC12 / CRC13, Digital deposit, Fair use

Happy birthday, St Columba
Today is the birthday, 1,500 years ago, in 521, of a celtic saint variously called Columba or Colmcille (pictured left). He founded many monasteries, including those in Kells, Ireland, and Iona, Scotland, where the Book of Kells was written. A tale about him forms an important part of Irish copyright lore. It is, therefore, an auspicious day on which to note that there has recently been an important development in Irish copyright law: the EU’s DSM Directive has recently been implemented into Irish law (see the European Union (Copyright and Related Rights in the Digital Single Market) Regulations 2021 (SI No 567 of 2021) (SI 567) implementing Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (Text with EEA relevance) (OJ L 130, 17.5.2019, p. 92–125) (DSM)).

In the foreword to her magisterial Copyright in the Digital Single Market. Article-by-Article Commentary to the Provisions of Directive 2019/790 (OUP, 2021) Eleonora Rosati points out that this year is the 30th anniversary of the first harmonizing Directive in the broad copyright field and (Software Directive) and the 20th anniversary of the most significant Directive in that field (InfoSoc Directive).…

Seán Quinn, the Streisand Effect, and improving the operation of the right to be forgotten – updated

9 November, 202116 November, 2021

| 4 Comments

| GDPR, Right to be Forgotten

Google search RtbF notice

I have just conducted a search on a popular search engine for “Seán Quinn”, and the above message – that Some results may have been removed under data protection law in Europe – appears at the bottom of each page of results. Over the past weekend, there was widespread media coverage of attempts by Seán Quinn to rely on the EU’s right to be forgotten to remove newspaper articles from search listings that highlighted significant aspects of his bankruptcy and of his family’s lavish pre-bankruptcy lifestyle. This attempt at reputation management backfired spectacularly on him, and stands as an example of the Streisand effect, which is:

… a phenomenon that occurs when an attempt to hide, remove, or censor information has the unintended consequence of increasing awareness of that information, often via the Internet. It is named after American singer Barbra Streisand, whose attempt to suppress the California Coastal Records Project photograph of her residence in Malibu, California, taken to document California coastal erosion, inadvertently drew greater attention to it in 2003.

On Saturday, in the Irish Independent, Shane Phelan published the following story:

Revealed: Quinn family succeeds in campaign to erase press coverage of lavish lifestyle

Google delists dozens of articles on court battles and even €100,000 wedding cake

Members of ex-billionaire Seán Quinn’s family have mounted a successful campaign to have press coverage about their past ‘forgotten’ by Google.

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Some recent podcasts on regulating (the) Meta(verse) and understanding copyright

8 November, 2021

| No Comments

| General

I did a few podcasts recently. First, I chatted with the Irish Independent‘s Adrian Weckler on his Big Tech Show:

What is Facebook’s new metaverse?

Will we all switch over to a new, more integrated virtual reality to socialise, play, work and shop? That’s what Mark Zuckerberg thinks is going to happen. He and Facebook are now about to start building this ‘metaverse’, partly in Ireland.

How will it benefit our lives? How might it hurt our lives? To dig deeper into what the metaverse will and won’t be, Adrian is joined by Bloomberg’s technology editor Nate Lanxon and TCD professor Eoin O’Dell. The panel take a look at how the metaverse will work and what the privacy and regulatory implications might be.

video | audio

A little time later, I looked at the possible regulatory consequences of France Haugen‘s revelations about Facebook with Jess Kelly on Newstalk’s Tech Talk podcast:

Facebook is Meta …

Jess looks at the rebrand of Facebook to Meta. Dr Eoin O’Dell discusses upcoming legislation and Emmet Ryan explains what impact it will have on the issues facing the company. …

Finally, on a completely different note, I chatted with the Irish Times journalist Karlin Lillington about all things copyright on the fantastic Walled Culture podcast:

The copyright creation myth, a permission-based society, and EU vs US copyright law

Dr.

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Judges, judging, and the use of academic sources

28 October, 20218 November, 2021

| 2 Comments

| Irish Supreme Court, judges

Next Saturday, 6 November 2021, the third annual conference of the Irish Supreme Court Review will take place online, hosted by the School of Law, Trinity College Dublin and supported by Pinsent Masons. Papers delivered at the conference will reflect major themes in the work of the court and its leading cases in the 2020-2021 legal year. The event will take place online through Zoom. As these papers comment on the work of the Supreme Court, it may be that the Supreme Court will in turn comment on some of these papers.

Lord Burrows (pictured right), a Justice of the Supreme Court of the United Kingdom, has something to say about that. Last May, he gave a paper to the Annual Conference of Judges of the Superior Courts in Ireland. It was entitled “Judgment-Writing: A Personal Perspective” (pdf). It updates and complements a paper of his from 2013, written when he was Professor of the Law of England in the University of Oxford, entitled “Judgment-Writing: An Academic Perspective” (SSRN). Both papers are very interesting, and the shift in focus from academic to judge is especially so. One paragraph particularly caught my eye (see the 2021 paper at [4](iii) p6; compare the 2013 paper at [3](iii) p5):

… I think a little more time ought to be spent in judgments, at least involving difficult questions of law, placing the judgment in its wider legal context.

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Ryanair, chargebacks, unfair terms, and lawful act duress

13 October, 202114 October, 2021

| 1 Comment

| Contract, Contract, Unfair Contract Terms

Ryanair Check In, via Wikipedia (element)

1. Chargebacks

If you pay for a transaction by a debit or card, and there are problems with it, you may be entitled to a chargeback, which is “reversal of a disputed sales transaction on a credit or debit card. … The card provider will decide if you are entitled to a refund based on the circumstances. …”. Assume you booked a flight some time ago, but, on the day of the flight, the destination was one in respect of which Government guidance was, for Covid reasons, that you should not travel. Let us further assume that the flight nevertheless operated, so that it was not cancelled, and the airline refused to refund your ticket price. In those circumstances, you could seek your money back via chargeback from your card provider. In most such circumstances, card providers do indeed decide to make the refund.

Now, let us assume that the airline in question is Ryanair. Article 7 of their Terms and Conditions deals with circumstances where they refuse to carry a passenger; it provides, in part:

Article 7 – Refusing to carry a passenger
7.1
We may refuse to carry you or your baggage on any flights operated by an airline of the Ryanair Group, if one or more of the following circumstances apply, or we have good reason to believe that they may apply.

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Claire North’s 84K is a profound exploration of dysaguria

30 August, 202131 August, 2021

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| Dysaguria

A little while ago, I read Claire North’s 84K (Orbit; Little, Brown Book Group, London, 2018) (cover left). It is a stunning novel, vividly conceived and brilliantly executed, and I cannot recommend it highly enough. But my reasons for mentioning the novel here concern not so much its literary merits, but also how best to describe the world so chillingly realized within its pages.

Published after the Brexit referendum, but before the UK had left the EU, it is set in a post-Brexit England of the very-near future, where (a man called) Theo Miller works in the Criminal Audit Office. His job is to assess crimes and calculate the indemnity that the perpetrators must pay to ensure their debts to society are paid in full. Those unable to pay the indemnity are set to forced-labour in prison. The indemnity system is regularly described in the book as much more efficient than the alternatives. Moreover, everything is run by a company that’s owned by a company that’s owned by THE Company. In the ultimate example of business efficiency taking over from creaking public authorities, the government has licensed the Company to collect taxes: the Company pays the government £400b and keeps any profit above and beyond that.…