Eoin – Page 13 – cearta.ie

Striking the balance of the constitutional protections of free speech and good name in Irish defamation cases – corrected, revised, and updated

14 September, 20202 May, 2025

| Defamation, Freedom of Expression, Freedom of Expression

1. Balancing competing rights
Irish defamation cases are increasingly replete with comments stating the need to balance the constitutional right to freedom of expression with the constitutional right to a good name. Article 40.6.1(i) of the Constitution protects “right of the citizens to express freely their convictions and opinions”; whilst Article 40.3.2 provides that the “State shall … by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the … good name … of every citizen”. Recent cases citing these rights together include Watson v Campos [2016] IEHC 18 (14 January 2016) [28] (Barrett J); Rooney v Shell E&P Ireland [2017] IEHC 63 (20 January 2017) [31]-[32] (Ní Raifeartaigh J); Ryanair v Channel 4 Television [2017] IEHC 651 (05 October 2017) [49]-[52] (Meenan J).

The language of balancing of competing constitutional rights is longstanding and widespread, in Ireland and elsewhere; and it is deployed in these cases to foreclose an a priori outcome where one right is automatically favoured over the other. Irish constitutional law does indeed subscribe to a hierarchy of rights in some cases (see, eg, People (DPP) v Shaw [1982] IR 1, 63 (Kenny J)); but that is usually unprincipled and largely unworkable (see, eg, Attorney General v X [1992] 1 IR 1, [1992] IESC 1 (5 March 1992) [138]-[139] (McCarthy J), [184] (Egan J); Sunday Newspapers Ltd v Gilchrist and Rogers [2017] IESC 18 (23 March 2017) [36] (O’Donnell J; Denham CJ, Clarke, MacMenamin and Dunne JJ concurring)); [update] indeed, it has been rejected where freedom of expression has been balanced against the right to a fair trial (DPP v Independent News and Media plc [2017] IECA 333 (21 December 2017) [13]-[14] (Edwards J) (Finlay-Geoghegan J concurring) (applying Gilchrist)) [/update]; and it has not been deployed at all in defamation cases when freedom of expression competes with the right to a good name.…

Finders are not keepers. If money is just resting in your account, and even if you have no idea how it got there, you can’t keep it – you have to make restitution of the mistaken payment or run the risk of prosecution for theft

12 June, 202021 July, 2024

| 1 Comment

| Mistaken payments, Restitution

In the classic comedy television series Father Ted (Channel 4 | IMDB), the title character, Fr Ted Crilly (pictured left, as portrayed by actor Dermot Morgan) often claimed “That money was just resting in my account!”. We learn early in the first series that Ted was exiled to Craggy Island for stealing money intended to send a child to Lourdes and using it for a trip to Las Vegas (S1E3). In various subsequent episodes (S1E6; S2E4; S2E6; S3E8) he claims that the money was just resting in his account. I was reminded of this by an article (sub req’d) by Fiona Ferguson currently on the front page of Courts News Ireland:

Man claimed he ‘found’ €17k of fraud cash in his bank account

A Malawian man charged with money laundering who told gardai that he found €17,000 in his bank account when checking to see if his wages had been paid has avoided a jail term.

John Carlos (32) used some of the money to pay his college fees before transferring €12,000 to a savings account. He then contacted the bank to alert them to the €17,000 and the transfer he had made.

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Neither a pretty face nor a beautiful game — of football pitches, data protection impact assessments, artificial intelligence, facial recognition, and closed-circuit television surveillance

9 June, 202011 June, 2020

| No Comments

| Data Protection

I read this morning that, in a wide-ranging letter to Congress on racial justice reform, IBM CEO Arvind Krishna wrote that IBM will no longer offer “general purpose facial recognition or analysis software”. Of course, “general purpose” is doing a lot of work in that sentence. But let’s see where it goes. [Update]: two days later, Amazon followed with a one-year moratorium on police use of their facial recognition technology, to give Congress enough time to implement appropriate rules. Again, let’s see where this goes.[End update]

These developments reminded me of a recent local story about Dublin City Council. Not content with seeking to post freeze-frame closed-circuit television (CCTV) images of people dumping their rubbish in litter black-spots, in the hope of shaming them or others into desisting from doing so in the future, now they want CCTV cameras with facial-recognition capabilities. Nearly three months ago (in the world just before lockdown) Sean Finnan reported in the Dublin Inquirer [with added links]:

Council Installed Cameras with Facial Recognition on Football Pitch

Before the refurbishment of the football pitch at Bluebell Road in the west of the city, it was an anti-social blackspot, says Michael O’Shea, chairman of Inchicore Athletic FC.

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Principles for legislators on the implementation of new technologies

3 June, 20203 June, 2020

| No Comments

| Data Protection

A few weeks ago, I was proud to be a signatory to an open letter (available here and here), from the Irish Council for Civil Liberties (ICCL), Digital Rights Ireland (DRI), and several scientists, data protection experts, and academics, warning that experts and the public need to see details of the Government’s planned contact tracing app. By way of follow-up, ICCL, DRI and others have drafted principles for legislators on the implementation of new technologies. These principles seek to frame positive engagement with Government and legislators on the implementation of technologies developed in-house or in partnership with third parties, such as Covid-19 contact-tracing apps. The principles (pdf; via here) are set out below; and, once again, I am proud to be a signatory.

Principles for legislators on the implementation of new technologies

The Irish Government and Irish legislators must not abandon their legal responsibilities to ensure any tech solution deployed as part of public policies is developed with human rights at the front and centre, and has robust privacy protections.

In a democracy, any technology developed by a government or in partnership with third parties, will need to have the trust and consent of the population to work effectively.…

Welcome to the Irish Blawgosphere: Tom O’Malley on Sentencing, Crime and Justice

11 May, 202011 May, 2020

| No Comments

| Irish law

A few weeks ago, Tom O’Malley (academic, barrister, law commissioner; pictured right) started a new and important blog, called Sentencing, Crime and Justice. His logic and timing are impeccable:

A New Blog: here we go….

… when a man is under lockdown and knowing that it may be years before he gets busy again (at the bar at least) or that he might even be swept into oblivion at any moment by the Corona virus, he should take advantage of his leisure to start a blog. It will deal mainly with criminal law, sentencing and criminal procedure though it may occasionally stray into other areas of law as well.

Céad míle fáilte romhat, Tom, chuig an Blawg O’Sphere!…

Irish copyright law must enable digital deposit (updated and corrected)

1 May, 202016 June, 2021

| No Comments

| COIPLPA, Copyright, Digital deposit

In an earlier post, I took Frank McNally’s Irishman’s Diary from the weekend as the starting point to explore the modern constitutional relevance of the leading copyright case of Donaldson v Becket (1774) 2 Bro PC (2d) 129, 1 ER 837, [1774] EngR 47 (22 February 1774) (pdf); (1774) 4 Burr 2408, 98 ER 257 (pdf). It is one of the most famous cases in the history of copyright law; and McNally’s point was that one of the counsel for the successful party hailed originally from Co Roscommon. Before getting to my discussion of the case, I noted that the column had been illustrated with a picture of a young reader in the Long Room of Trinity College Dublin’s Old Library. The column and image also moved my Trinity colleague Helen Shenton (pictured left), our Librarian and College Archivist, to respond, in her case by way of a Letter to the Editor:

Digital black hole in our national memory

Sir, – Frank McNally’s amusing observations about Ireland’s long chequered relationship with copyright history (An Irishman’s Diary, April 25th) was illustrated by a photograph of the gallery of the beautiful Long Room in the Library at Trinity College Dublin.

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HSE app: experts and public need to see details

30 April, 20203 June, 2020

| 2 Comments

| Data Protection

I am proud to be a signatory to the letter below, from the ICCL website:

Covid-19 is a threat to us all. Ireland’s health services are developing a Covid Tracker Ireland App, which has both contact-tracing and symptom-reporting elements.

We, the undersigned civil societies, scientists, and academics believe that more consideration needs to be given to the production of an app solution. The Ada Lovelace Institute’s assessments of contact-tracing apps warn of insufficient evidence saying the ‘technical limitations, barriers to effective deployment and social impacts demand more consideration’.

If Ireland decides to use an app we must ensure that it respects legality and human rights norms. Failing to do so will undermine the public trust required for it to have public health benefits. In developing the app, the Health Service Executive (HSE) and the Department of Health should:

Embrace transparency and promote trust. To better protect privacy and personal data, the European Data Protection Board advises that source code cannot be concealed and must be shared publicly and regularly audited by external experts. It is vital that the public trusts the solutions of our government.

Design for privacy and data protection. Protection of citizens’ public data must be considered in the basic design.

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