Author: Eoin

The Seanad Public Consultation Committee was established “to facilitate direct engagement and consultation between members of the public and Seanad Éireann” (pdf).

It has just undertaken a Consultation on the Status, Treatment and Use of the National Anthem (pdf):

The purpose of this consultation is to invite submissions from interested parties or citizens to consider the most appropriate way the State should treat the National Anthem. This consultation process is being considered in the context of the music and English and Irish lyrics of the National Anthem no longer being in copyright. Legislative proposals have been made to address this issue. Seanad Éireann would like to consult with citizens on their views on this issue.

I have already commented at length on this blog about the issue, so I made a short submission to the Committee in which I referred to those posts, and answered some of the questions posed in the Consultation. In my view, the anthem should be treated with respect and dignity, and there is a good case to be made for legislation to protect it from inappropriate commercialisation. However, I do not think that copyright is a suitable means to this end. Instead, I think that it is a matter for a specialist piece of legislation, specifically directed to the issue. I have drafted a possible Bill (doc), and I attached it to my submission to the Committee, and my answers to the Committee’s questions reflect the drafting choices in the attached Bill.

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The description for this picture provides:

I spent a long time thinking about how to design a system for long-term organization and storage of subject-specific informational resources without needing ongoing work from the experts who created them, only to realized I'd just reinvented libraries.

This picture is worth many thousand of my words:

• Copyright reform and digital deposit;
• Legal deposit of digital publications; and
• The copyright implications of a publicly curated online archive of Oireachtas debates.

A conference to mark 80 years of Bunreacht na hÉireann, the Irish Constitution, will be hosted by the School of Law, University of Limerick on 11 November 2017 in the Irish World Academy of Music and Dance. The conference will bring together judges, scholars, practitioners, and those with experience of constitutional governance to reflect upon and discuss the past, present and future of Ireland’s constitutional order at this important milestone. Keynote presentations will be delivered by Emily Logan, Chief Commissioner of the Irish Human Rights and Equality Commission, and Mr Justice Donal O’Donnell, Judge of the Irish Supreme Court. I will be delivering a paper in the following panel:

PROPERTY, SOCIAL ECONOMIC RIGHTS AND INJUSTICIABILITY

Dr Eoin O’Dell: Property Rights, Proportionate Restrictions, and Media Pluralism

Dr Claire M Smyth: Social and Economic Rights, Irish Constitution and International Obligations

James Rooney: The Injusticiable Constitution and the Common Good: The Preamble and Directive Principles in Contrast

This is the abstract of my paper:

A Report on the Concentration of Media Ownership in Ireland (2016) raised “grave concerns about the high concentration of media ownership in the Irish market”, and the Irish report for the EU’s Media Pluralism Monitor recommended that legislative limits on levels of media concentration should be applied retrospectively. As a consequence, a Private Members’ Bill, the Media Ownership Bill 2017, proposed to permit the Minister for Communications, Energy and Natural Resources to take “retroactive measures” to reduce “significant interests” held by “any one relevant media asset”. This plainly engages the Constitution’s protections of property in Article 40.3 and Article 43.1, which are among the most consistently litigated of its rights since 1937. This paper will consider the nature and extent of the Constitution’s protections of property, the strength of media pluralism and diversity as elements of social justice or the common good that can constitutionally limit property rights, and the extent to which the Bill nevertheless constitutes an unjust (usually, a disproportionate) attack on any engaged property rights.

Kudos to Laura Cahalane and David Kenny, and to their team in UL, Hope Davidson, Caitlin Moyne, and Stephen Strauss-Walsh, for putting together such a great event. The draft programme may be downloaded here (.docx); all are welcome to attend; there is a modest fee; and registration is required.

In Trinity College Dublin, where I work, the Long Room Hub is the College’s Arts & Humanities Research Institute. It hosts over 250 events each year, including a discussion series entitled Behind the Headlines, which offers background analyses to current issues by experts drawing on the long-term perspectives of Arts & Humanities research. In particular, the series “aims to provide a forum that deepens understanding, combats simplification and polarization and thus creates space for informed and respectful public discourse.”

In the recent past, the series has featured discussions on artificial intelligence, Trump’s America, Syria, and Brexit (not once but twice). The next event in this series will be on Monday 6 November 2017, 6:30pm to 8:00pm, on

Freedom of Speech: Where Journalism and the Law Collide at the Boundary of 21st Century Debate

In a world where truth is under siege, freedom of speech has never been more important. But, as outrage and offense in public debate become a commodity for social media technology giants, the future of professional journalism in educating public opinion while challenging authority and power is increasingly under attack. …

This discussion is part of the ‘Fears, Factions and Fake News’ symposium held in conjunction with Columbia University and in partnership with Independent News and Media.

I am one of the four speakers; the other three are Professor Todd Gitlin (Columbia Journalism School, Columbia University), Dearbhail McDonald (Independent News and Media Group Business Editor) and Andrea Martin (media lawyer and speaker, MediaLawyer Solicitors).

Last Sunday, under the headline Major free speech symposium by INM, TCD and Columbia, the Sunday Independent ran a piece by Wayne O’Connor about the ‘Behind the Headlines’ discussion and the other events in the symposium. This provoked a response by Peter Murtagh in this morning’s Irish Times:

US academic pledges to defend free speech ‘with anyone’s funding’

Conference, partly funded by INM, has been criticised because of links to Denis O’Brien

A leading US academic due to speak at a conference partly funded by Independent News and Media has said he “will defend the right to seek truth and to campaign against any and all assaults on the freedom of speech”. Prof Todd Gitlin of Columbia University’s prestigious school of journalism will participate in a seminar on November 6th entitled Freedom of Speech – where journalism and law collide.

The conference has been criticised because of the links to Denis O’Brien, a leading INM shareholder and the owner of Communicorp, one of the biggest radio stations groups in Ireland. … Saying that he had not “previously heard” of Mr O’Brien, Prof Gitlin said: “Please be assured that in any setting, with anyone’s funding, I will defend the right to seek truth and to campaign against any and all assaults on the freedom of speech.”

So, an event about “behind the headlines” is making headlines itself. (more…)

When the UK Supreme Court was established in 2009, with the capacity to broadcast its proceedings, I wondered when the Irish Supreme Court would follow suit, and televise its proceedings too. Today, I have the beginnings of an answer. This morning, the Supreme Court televised its proceedings for the first time, when it broadcast the delivery of two judgments. That broadcast should be available, for the next few days at least, via the RTE Player.

Chief Justice Clarke said that the move was aimed at “demystifying” the courts process, and allowing people to “see how their highest court operates”. He also described the move as a “baby step” which could lead to wider filming of the courts in the future. I hope that it will not be long before the Supreme Court routinely broadcasts its proceedings as its UK counterpart does, and there is certainly potential for the broadcast of proceedings of other courts too. The Irish Times said:

The live broadcasting of court proceedings has been discussed for years but the impetus for it has been attributed to a meeting five years ago between Ms Denham and then RTÉ deputy director general Kevin Bakhurst. Since his appointment as Chief Justice last July, Mr Justice Clarke has been keen to advance the project, and his involvement and support was a crucial factor.

This is an excellent start, but a lot more needs to be done. As Article 34.1 of the Constitution tells us, justice is administered in public. In this day and age, the broadcast of the Supreme Court’s proceedings should be the norm, and the sooner that is so, the better.

From a twitter thread by Philip Boucher-Hayes last week, I learned that Ken Foxe had reported in the Irish Mail on Sunday that nearly ten years of video footage of Oireachtas debates and hearings had been taken offline. A spokesperson for the Houses of the Oireachtas said that the videos were removed because they had little traffic and were in an obsolete format. However, after an outcry online, the footage was restored, though with limited functionality. To overcome first the takedown, and then the limitations, various concerned netizens – including, I understand, Gerard Cunningham, Emerald De Leeuw, Elaine Edwards, and Sterling Plisken – have begun work on a publicly curated online archive of Oireachtas debates and hearings.

This is not the first time that civil society has had to step up when public functions have stepped back (see the story of the demise and return of KildareStreet.com, with various backups here and here). So, I think that a publicly curated online archive of Oireachtas debates is a fantastic idea, and I hope it prospers. It also provides a context in which I can discuss an important issue relating to Oireachtas copyright and digital deposit.

First, the Oireachtas holds copyright in the broadcast material. Chapter 19 of Part II of the Copyright and Related Rights Act, 2000 [CRRA] (that is, sections 191 to 195 CRRA (also here and here)) provides for Government and Oireachtas copyright. In particular, section 193(2)(b) CRRA (also here)
provides that the Oireachtas holds copyright in “any sound recording, film, live broadcast or live cable programme of the proceedings of either House of the Oireachtas”. So, the starting point of the copyright analysis has to be that the Oireachtas could therefore in principle rely on this copyright to restrict the reproduction of the Oireachtas broadcasts, or making them available online.

Second, there is, however, an exception which might permit at least some of the work of a publicly curated online archive of Oireachtas debates and hearings. Section 71(1) CRRA (also here) provides

The copyright in a work is not infringed by anything done for the purposes of parliamentary or judicial proceedings or for the purpose of reporting those proceedings.

The question, therefore, is whether a publicly curated online archive of Oireachtas debates and hearings is reproduced and made available for the purposes of “reporting” Oireachtas proceedings within section 71 CRRA. There is a comprehensive discussion of the issue by Simon McGarr on his Tuppenceworth.ie blog. I think that the argument that the archive would be a report for the purposes of section 71 CRRA could go a very long way towards permitting the production of a publicly curated online archive of Oireachtas debates and hearings. However, there must be limits to what constitutes a “report”. And it may be that the archive exceeds them, at least in some respects.

Third, if section 71 CRRA isn’t enough, then a current reform process might provide another exception to permit the production of a publicly curated online archive of Oireachtas debates and hearings. (more…)

Last updated: 26 October 2017

Parallel to my interest in compensation for breach of the General Data Protection Regulation [GDPR; Regulation (EU) 2016/679], I am also interested in the question of compensation for breach of the proposed ePrivacy Regulation (hereafter: pePR; see, eg, the EU Commission’s proposal for a Regulation on Privacy and Electronic Communications; on which see Flash Eurobarometer 443 Report on e-Privacy (pdf download)).

Article 22 of the Commission’s proposal provides:

Any end-user of electronic communications services who has suffered material or non-material damage as a result of an infringement of this Regulation shall have the right to receive compensation from the infringer for the damage suffered, unless the infringer proves that it is not in any way responsible for the event giving rise to the damage in accordance with Article 82 of Regulation (EU) 2016/679.

The emphasised words appear in exactly the same form in Article 82(1) GDPR. The remainder of Article 82 provides circumstances where an infringer is not responsible for the event giving rise to the damage and thus not liable for breach of the GDPR, and those circumstances apply mutatis to an infringer who would not be liable for breach of the pePR. This is not surprising: Article 22 of the pePR appears in a list of Articles (from 18 to 24) in which the supervision and enforcement of the pePR, and remedies for its breach, are integrated with those provided by the GDPR. The effect of Article 22 is to provide for compensation for breach of the pePR on the same basis as compensation is available for breach of the GDPR.

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Libel cases in England and Wales are “better off without juries”, according to Sir Mark Warby, the High Court judge with responsibility for the Media and Communications List of the Queen’s Bench Division. As reported yesterday in the Brief, the legal newsletter of The Times, he was speaking on Tuesday at the London conference of the Media Law Resource Centre, an American organisation. He said that he “does not regret the passing of the jury at all”, and he pointed out (pdf) that there are many advantages to the “virtual abolition” of juries in defamation cases:

It has removed the territorial disputes that quite often used to arise, over whether a given issue is within the province of the judge, or that of the jury. In addition, this reform has all but eliminated the practice of arguing the same point to different threshold standards on different occasions. It is now possible for many more cases to reach a final resolution more economically by early judicial decisions on key issues of fact, or mixed issues of law and fact.

In England and Wales, section 11 of the Defamation Act 2013 provides that defamation actions are to be tried without a jury unless the court orders otherwise. It is interesting to see the judge in charge of the relevant list welcome this development so warmly; and it is a reform I think that Irish law could with profit adopt, not only for the reasons of efficiency which Sir Mark provides, but also because it could contribute to the reduction of high damages awards. It is a matter I have already recommended (pdf) to the review of the Defamation Act 2009 (also here) currently being conducted by the Department of Justice. Indeed, as the submission (pdf) from the Department of Communications, Climate Action and the Environment to that process observed:

Among the most pressing difficulties … with defamation action jury trials are:
• The unpredictability of juries;
• The high level of damages that they may award;
• The length of the trial period creating an increased costs in jury trials; and
• The complexity of the law in relation to a jury trial.

The level of damages in defamation cases remains a concern to the media sector and to stakeholders. A trial by jury increases legal costs and lengthens the time of each case.

That submission recommended that the lead in England and Wales be followed, as did the Department of Journalism (pdf) in the School of Media, Dublin Institute of Technology, the Business Journalists’ Association(pdf), Google (pdf), MGN (pdf), NewsBrands Ireland (pdf), and Ronan Daly Jermyn (pdf).

The submission (pdf) from Independent News and Media pointed out that jury trial in defamation cases “is also out of line with other civil law cases where juries are not used”, and recommended their abolition, without any reference to the power of the court to decide otherwise. Local Ireland (the promotional brand of the Regional Newspapers and Printers Association of Ireland) made a similar submission (pdf), as did Kieran Fitzpatrick (pdf), and the Public Relations Institute of Ireland (pdf).

The Irish Times recommended (pdf) the abolition of juries in defamation cases, if not generally, then at a minimum in the determination of damages, as did Michael Williams (pdf) and the Press Council (pdf).

On the other hand, Johnsons Solicitors (pdf) firmly recommended that the presumption in favour of a jury trial should be retained in High Court cases; and other solicitors who responded to the Law Society’s call for comments also recommended (pdf) that juries be retained, as they are best placed to assess impact and also act as a deterrent to the more extreme excesses of the media.

If the jury is to be retained, then the Bar Council (pdf), the Joint Oireachtas Committee on Justice and Equality (pdf), McCann Fitzgerald (pdf), the National Union of Journalists (pdf), RTE (pdf), and William Fry (pdf), all recommended that, having regard to the decision of the Court of Appeal in Higgins v Irish Aviation Authority [2016] IECA 322 (04 November 2016), the jury should not be included in the offer of amends procedure in sections 22 and 23 of the 2009 Act (also here and here).

So, many views have been submitted to the Department, with the usual suspects making the usual arguments: media organisations and their lawyers arguing against juries, with plaintiffs’ lawyers arguing in favour. What’s most striking to me, though, is that the more disinterested observers also argue for the abolition of juries in defamation cases. And their views are reinforced by Warby J’s comments. On balance, therefore, I think that it’s time to abolish juries in defamation cases; (here’s how); and I hope that the current review will do just that.