Author: Eoin

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

Who will keep the keepers? II

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| Cyberlaw, Digital Rights

It never rains but it pours. Having recently blogged about about Emily Laidlaw’s article on search engine accountability, I’ve just come across the similarly important article by Oren Bracha and Frank Pasquale on Federal Search Commission? Access, Fairness, and Accountability in the Law of Search 93 Cornell Law Review 1149 (2008) (pdf). They robustly argue that general-purpose search engines are better characterized not as media outlets (contrast Finklestein) but as common carriers (quite a common argument in the online context), that they should therefore come under common law duties that govern public utilities (appropriately adapted), and that – by analogy with the Federal Communications Commission (FCC) – a new regulatory framework (the Federal Search Commission (FSC) of the title) should be established. They conclude:

Search engines, in whatever form they might assume, will continue to be a major part of our informational environment in the foreseeable future. The normative concerns associated with their unique position of power are here to stay. A properly designed regulatory approach may do much to ameliorate these concerns. Courts should not end the debate over the contours of such an approach before it begins.

Hear, hear! However, if online search requires an FSC in the US, then it will require equivalents in other jurisdictions as well.…

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The power of letters

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| Censorship, Conferences, Lectures, Papers and Workshops, data retention, Human Rights

Front page of today's Guardian, via the Guardian's siteShami Chakrabarti, director of Liberty (the National Council for Civil Liberties), has an editorial letter published in today’s Guardian which begins:

Sir – 75 years ago today, in a Britain strained by economic crisis and social unrest, and in the long shadow of international conflict, the birth of the National Council for Civil Liberties was announced in a letter to this newspaper.

Little has changed. As is reported elsewhere in the same edition, students from the University College London Student Human Rights Programme, have prepared a report setting out the current assaults on liberty in the UK, under the suitably Orwellian title of The Abolition of Freedom Act 2009. It was prepared for this weekend’s forthcoming Convention on Modern Liberty (organised by the UK’s leading human rights campaigners, including Liberty and the Guardian) and it makes for chilling reading.

The situation is equally as grim in Ireland. Today’s Irish Times carries an article by Elaine Byrne on a forthcoming report prepared by her for Transparency International on serious shortcomings which have weakened the quality of Ireland’s democracy. The same edition carries an article on the financial costs associated with the forthcoming data retention regime being challenged by Digitial Rights Ireland.…

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The original Brandeis brief

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| judges, Law, US Supreme Court

Image of Louis D Brandeis, via OyezLouis D Brandeis (left), as lawyer, and as judge of the US Supreme Court, championed such unpopular causes as freedom of speech, privacy and worker protection. Arising from his belief that law is a device to shape social, economic, and political affairs, one of his enduring legacies is what has become known as the Brandeis Brief: a legal argument which relies not only on legal argument but also on analysis of empirical data. It was first deployed by Brandeis in Muller v Oregon 208 US 412 (1908), where he marshalled statistics from medical and sociological journals which demonstrated overwork was inimical to the workers’ health to support his argument that legislation limiting hours for female laundry workers was constitutional. The Law School of the University of Louisville is named for Brandeis, and I learn from Dan Ernst on Legal History Blog that Louisville have now made the original Brandeis Brief available online.…

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Who will keep the keepers?

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| Cyberlaw, Digital Rights, Juvenal

Cover of the IJLITomment on this blog that the Roman poet Juvenal asked Quis custodiet ipsos custodes? (who will watch the watchers?). Emily B Laidlaw, in her fascinating article, Private Power, Public Interest: An Examination of Search Engine Accountability, raises the parallel question of who will keep the keepers? In the vast new information age bequeathed to us by the internet and the world wide web, gatekeepers are those who enable – and control – our access to that information. At present, they are all private entities, and even if they wish to do no evil, there is no reason why they should actually do some good, let alone act in the public interest. Laidlaw’s analysis therefore focuses on the important issue, who will keep the (gate)keepers; here’s the abstract:

As information becomes a critical commodity in modern society, the issue is raised whether the entities that manage access to information, that are tools for public discourse and democracy, should be accountable to the public. The Internet has transformed how we communicate, and search engines have emerged as managers of information, organizing and categorizing content in a coherent, accessible manner thereby shaping the Internet user’s experience.

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Justice in Measure For Measure

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| Cinema, television and theatre
Shakespeare, via Wikipedia
Image via Wikipedia

I have already glanced at the legal issues in The Merchant of Venice on this blog; but Shakespeare dealt with issues of justice and mercy in many other plays as well. Consider for example Measure for Measure (wikipedia | full text | Project Gutenberg), which juxtaposes imperfect justice on earth with merciful justice in heaven. Christine Corcos on the Law and Humanities Blog writes about a fascinating analysis of the play from a legal perspective (with added links):

Justice in “Measure For Measure”

John V. Orth, University of North Carolina, Chapel Hill, School of Law, has published “‘The Golden Metwand’: The Measure of Justice in Shakespeare’s Measure for Measure,” in the Adelaide Law Review. Here is the abstract.

Measure for Measure, one of Shakespeare’s problem plays, is a dark comedy depicting Duke Vincentio’s effort to restore respect for the law after a period of lax enforcement. Peopled with a wide variety of law-enforcers and law-breakers, the play implicates numerous legal issues and has consequently attracted the attention of lawyers and judges. In the eighteenth century Sir William Blackstone contributed notes on the play, while in the twentieth century judges have quoted from it in their judicial opinions.

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Football and fiduciaries

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| Fiduciaries, Restitution

Football, via WikipediaWhat if a footballer’s agent, in negotiating for his client, makes a secret deal with the club for himself on the side?

This is how Jacob LJ opened Imageview Management Ltd v Jack [2009] EWCA Civ 63 (18 December 2008). It concerns the bung, which is almost as endemic in football as referees, the offside trap, and angry managers. Bungs are secret payments that are sometimes part of football transfers; taking one is against the rules of football; the question in Imageview Management Ltd v Jack is whether the agent breached his duties to his client as well. The duties in question are fiduciary duties, weighty duties of loyalty owed by trustees, directors, agents, and so on.

In Boston Deep Sea Fishing v Ansell (1888) 39 Ch. D. 339, a company director secretly received commission from shipbuilders with whom an order had been placed on the company’s behalf. The Court of Appeal found him in breach of fiduciary duty. More recently, in Imageview Management Ltd v Jack [2009] EWCA Civ 63, the Court of Appeal reiterated the strictness of the fiduciary duties to which agents are subject in a case concerning a football agent. The agent was liable for a payment he received from a football club.…

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Arrest, lay litigant, sentence

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| Irish cases

Four Courts dome, via the Courts.ie website.Law reports from Monday’s Irish Times:

Offences must correspond under European Arrest Warrant

MJELR v Laks (High Court, 14 January 2009, Peart J) [2009] IEHC 3

An application for the surrender of Polish man to serve a 10-month sentence in Poland under a European Arrest Warrant was refused on the basis that there was not sufficient correspondence between the offence and an offence under Irish law to meet the terms of the European Arrest Warrant Act, 2003 (also here).


Lay litigant loses challenges to District Court judges

Tracey v Malone (High Court, 20 January 2009, Cooke J) [2009] IEHC 14

A law litigant who sought a series of rulings against Judge Miriam Malone and Judge Bridget Reilly of the District Court failed in his application and received a declaration confirming his entitlement to retain a professional stenographer at his own expense.


Appeal court says determinate sentence preferable to life sentence

DPP v PS (Court of Criminal Appeal, 28 January 2009) Finnegan J (Budd and Irvine JJ concurring) [2009] IECCA 1

The applicant was entitled to credit for an early plea of guilty, co-operation with the Garda and the early and apparently genuine expression of remorse and this justified a lesser sentence than life imprisonment.…

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