Author: Eoin

Dr Eoin O'Dell is a Fellow and Associate Professor of Law at Trinity College Dublin.

FoE in the EHRLR

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| Blasphemy, Censorship, criminal libel, Defamation, ECHR, EU media policy, Freedom of Expression, Human Rights, Legal Journals and Law Reviews, libel tourism, Sedition

EHRLR cover, via ECHR BlogThe current issue of the European Human Rights Law Review ([2009] 3 EHRLR | table of contents (pdf) | hat tip ECHR blog) contains a wonderful piece by my colleague Dr Ewa Komorek entitled “Is Media Pluralism a Human Right? The European Court of Human Rights, the Council of Europe and the Issue of Media Pluralism” [2009] 3 EHRLR 395.

Here is the abstract (with added links):

The need for pluralist media stopped being purely a national concern a long time ago and thus it has for decades been subject to scrutiny by the Council of Europe and the European Court of Human Rights. Media pluralism has always come to their agenda as a prerequisite for freedom of expression guarded by Article 10 of the European Convention of Human Rights. It is important to distinguish the two ‘faces’ of media pluralism: internal (which may also be called content pluralism or diversity) and external (or structural). This article focuses on television broadcasting and argues that while the Court of Human Rights has essentially been successful in safeguarding internal pluralism, the protection of structural pluralism proved more difficult to achieve by means of the Court’s case law. This prompted the Council of Europe to step in and attempt to fill the gap with regulatory proposals.

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Open access in the Irish Times

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| Legal Journals and Law Reviews, Libraries, open access, Universities

Open Access logo, via Wikipedia.I have written several times on this blog about open access journals, and I have re-posted some of the wickedly funny cartoons served up daily by Piled Higher and Deeper (PhD). Open access journals are the focus of PhD’s cartoon yesterday (it’s too big to repost here, but click through and enjoy – then come back here for the rest of this post!) (update: I’m not the only one who has used this cartoon as a jumping off point to discuss the future of online scientific publications – Lukas Ahrenberg does too). In one of those rare cases of serendipity which the universe’s roll of the dice can throw up, Quinn Norton has an excellent introductory piece on open access in yesterday’s Irish Times; here are some extracts (with added links):

Open Access leads the way in promoting academic research

WIRED : Scholars are embracing the internet to bypass publishers and speed the process of research

… In the mid-1990s Peter Suber, a research professor of philosophy at Earlham College in the US, got on the internet and learned how to make web pages. Like many in academia, he decided to post his papers.

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Ding, ding! Seconds out, round one: National Portrait Gallery Wikipedia v Wikipedia

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| Copyright

Roll up, roll up, for the next great online copyright bout. In the red corner, weighing in at almost 153 years old, is the venerable National Portrait Gallery, an institutional heavyweight if ever there was one. In the blue corner, weighing in at just over 8 years old, is the upstart Wikipedia, a sprightly bantamweight which has bulked up considerably in recent years and now packs a hefty punch. The fight is over whether Wikipedia has infringed the Gallery’s copyright in recently-created digital images of portraits which are out of copyright. A piece on this by TechnoLlama (Andres Guadamuz) – including the choice of image, though its subject has previously appeared on this blog – is too good to pass up (links in original):

National Portrait Gallery copyright row

Jeremy Bentham, via WikipediaSeveral news sites have reported an interesting copyright case involving the Wikimedia Foundation and the National Portrait Gallery (NPG) in Britain. The NPG undertook a £1 million GBP digitisation exercise, and placed high-definition versions of their pictures in a database locked with technological protection measures. Derrick Coetzee, a volunteer for the Wikimedia Foundation, accessed the database, circumvented the protection, and uploaded 3,300 NPG pictures to Wikimedia Commons.

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The political advertising ban rears its ugly head again

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| advertising, Freedom of Expression, Irish Society

Shell to Sea, via their siteI’m sorry I’m coming to this too late to attend the gig, but I’ve only just seen this piece by Lorna Siggins in today’s Irish Times (with added links):

RTÉ denies censorship of Afri advert over Rossport reference

RTÉ has denied that it has refused to broadcast an advertisement for a social event in Dublin tonight that includes a reference to the Mayo village of Rossport.

Justice and peace non-governmental organisation Afri said RTÉ is censoring its attempt to publicise the event, although it is willing to pay for the 20-second advertisement. An advert for the event was carried on the 98FM radio station yesterday.

Health and safety concerns about original plans by Shell EP Ireland for a high-pressure onshore pipeline led to the jailing of five men known as the Rossport Five for 94 days in 2005.

Over two months ago, RTÉ said it had “difficulties” with the wording of an advertisement for the Afri famine walk because of the reference to Rossport.

MidWest Radio had also declined to accept an advertisement for the famine walk from Afri, saying it had to consult the Broadcasting Commission of Ireland (BCI) on a reference to the Rossport Five.

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Identity theft, unilateral mistake as to identity, and wordle

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| Contract

Wordle: Shogun Finance v HudsonI can’t make up my mind whether wordle is a pretty annoying gimmick or a useful analytical tool which produces pretty results. The image on the left is a wordle anaylsis of the interesting decision of the House of Lords in Shogun Finance v Hudson [2004] 1 AC 1101, [2003] UKHL 62 (19 November 2003) produced by Michael Bromby on Digitial Directions. Michael has produced wordles for each of the speeches in the House of Lords and their conclusions will have have far-reaching consequences not only for the Law of Contract but also in circumstances of identity theft.

In the case itself, Durlabh Patel sought to buy a Mitsubishi Shogun SWB from a dealer on hire purchase. The effect of the hire purchase agreement was that the hire purchase company, Shogun Finance [Finance] stood in the place of the dealer, and so was effectively the seller of the car. To encourage the sale, Patel produced his driving licence, and Finance did a credit check on him; when that was satisfactory, Finance agreed to the hire purchase and instructed the dealer to let Patel have the car. Patel then sold the car on to Norman Hudson. So far, so uncontroversial; it happens all the time; and the car seller would then pay off the outstanding remainder of the hire purchase price, and buy a new car.…

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The decreasing value of an academic reference

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| Universities

Guardian Royal logo, via WikipediaA New York woman who says she cannot find a job is suing the college where she obtained a bachelor’s degree, because the college’s Office of Career Advancement did not provide her with the leads and career advice it had promised. (Update: Registrarism ponders the possibility of a similar claim in the UK, not least because, as the Guardian recently commented, as the recession bites hard, the options for new graduates look frighteningly limited). Perhaps someone somewhere along the line didn’t write her a good enough reference. If you don’t write a good enough reference, you might get sued: that’s one of the lessons of Spring v Guardian Royal Insurance [1995] 2 AC 296, [1994] UKHL 7 (07 July 1994). Moreover, the fear that subjects could have access to references under the Freedom of Information and Data Protection regimes is making referees less candid and thus less helpful. On the other hand, if you over-egg the pudding, there’s little value in what you write. Nevertheless, the trend now is to write paeans of uncritical praise rather than to analyse the candidates strengths and weaknesses. For example, Mary Beard has recently commented:

Anyone who has been involved in academic job interviews and selection … knows how important the references are.

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Website disclaimers

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| Contract, Cyberlaw

Image of swimming pool, via SPATA websiteFollowing on from my comments about email disclaimers, via TJ and OUT-LAW.com here and here, I learn of the decision of the Court of Appeal in England and Wales in Patchett v Swimming Pool & Allied Trades Association Ltd [2009] EWCA Civ 717 (15 July 2009) on the efficacy of website disclaimers. The plaintiffs asserted that they had suffered financial loss by relying on a mistaken statement on the defendants’ website, and the defendants countered that that clause on the site which urged visitors to the site to make further enquiries effectively disclaimed liability. In the Court of Appeal, Lord Clarke MR for the majority (Scott Baker LJ concurring, Smith LJ dissenting) held, at pargarph 39:

… I do not think that it can fairly be held that [the defendants] assumed a legal responsibility to the [plaintiffs] for the accuracy of the statements in the website without the further enquiry which the website itself urged.

And, in the next paragraph, he concluded:

When application was being made for permission to appeal it was suggested that special considerations apply to representations on websites. I do not think that the mere fact that the representations were contained on a website supports the conclusion that a duty of care is owed.

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Copperfastening the right of journalists to protect sources?

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| Freedom of Expression, Journalists' sources, Media and Communications

Copper nugget, via WikipediaMarie McGonagle, NUI Galway, writes in today’s Irish Times that the judgment in Mahon Tribunal v Keena [2009] IESC 64 (31 July 2009) (also here (pdf)) copperfastens the right of journalists to protect sources (with added links):

The vital public watchdog role of the press was upheld by the Supreme Court

… That decision, particularly as it emanates from a unanimous Supreme Court, must … mark a very significant stage in the development … of legal recognition of the right of journalists to protect their sources.

… Mr Justice Nial Fennelly … proceeded to consideration of the High Court judgment, with which he agreed in many respects. There is no doubt that the High Court judgment was valuable, particularly for its examination of the powers and interests of tribunals under the relevant legislation, and of the European Convention on Human Rights (ECHR) Article 10 principles of freedom of expression, including protection of journalists’ sources. Indeed, the High Court accepted that “the non-disclosure of journalistic sources enjoys unquestioned acceptance in our jurisprudence and interference in this area can only happen where the requirements of Article 10(2) . . . are clearly met”. The principle, which had long been denied in Irish law, was, therefore, firmly established.

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