Author: Eoin

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

Happy Data Privacy Day, 2009!

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| Privacy

Data Privacy Day image, via Ghosts in the Machine.Via Ghosts in the machine, Slaw, Toby Stephens, and the BBC (update: see also here), I am reminded that today, January 28, is Data Privacy Data (about which I have blogged in previous years). There is an extensive Council of Europe site; there is an Irish page here; and both Intel and Google are stepping up to the plate. Isn’t it about time that the Office of the Data Protection Commissioner was upgraded into a fully fledged Office of Privacy Protection?

Bonus links: I’ve already mentioned the most recent privacy recommendations of the Australian Law Reform Commission on this blog; at around the same time, the British Columbia Law Institute issued a Report on the BC Privacy Act, and the New South Wales Law Reform Commission issued a Consultation Paper on NSW privacy legislation. Our own Law Reform Commission’s report on privacy dates from 1998, and is in need of updating and enactment.…

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Recent speech cases

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| ECHR, Freedom of Expression, US Supreme Court

Cover of From a European Court of Human Rights press release:

Orban v France (application no. 20985/05)

The Court held unanimously that there had been a violation of Article 10 (freedom of expression) of the European Convention on Human Rights on account of the applicants’ conviction for, among other offences, publicly defending war crimes, following publication of the book Services Spéciaux Algérie 1955-1957 (“Special Services: Algeria 1955-1957”) …

The Court considered that the applicants’ conviction amounted to interference with their right to freedom of expression. The interference had been prescribed by French law and had pursued the legitimate aim of preventing disorder or crime. The Court stressed above all that it was not for it to rule on the constituent elements of the offence of publicly defending war crimes, its role being confined to ascertaining whether the applicants’ conviction on account of the publication of the book in question could be said to have been “necessary in a democratic society”.

On the question whether the interference had been “necessary in a democratic society”, the Court observed first of all that the authorities had had only a limited margin of appreciation, circumscribed by the interest of a democratic society in enabling the press to impart information and ideas on all matters of public interest and guaranteeing the public’s right to receive them.

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Freedom of speech for unpopular speakers; or, High flyers brought low

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| Freedom of Expression

Ryanair and Aer Lingus tail fins, via the BBC website.This post is by way of an out-of-date footnote to the previous two. I never thought I’d see the day when I would willingly come to the defence of Michael O’Leary, CEO of Ryanair, but – never say never – it’s happened! O’Leary revels in his unpopularity, a result as much of his airline’s lack of frills as of his straight-talking defence of this policy. Even though I’ve been a victim of his airline’s policies, I am more than happy to assert and defend his right to talk straight, not only in defence of those policies, but also to debate the merits of his airline taking over another.

Last week, he and Dermot Mannion (the CEO of Aer Lingus, the airline in Ryanair’s sights) had been scheduled to engage in just such a debate on Prime Time, RTÉ‘s flagship current affairs tv program, but the Irish Takeover Panel considered that it would constitute a breach of take over regulations, and the debate was cancelled. Nothing daunted, O’Leary sought to quash this ‘gag order’, and commenced judicial review proceedings. However, given the failure of the takeover, the court challenge was withdrawn. This is a pity.…

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Irving at the Lit & Deb: A reply to Prof Schabas

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| Freedom of Expression

The Holocaust History Museum Hall of Names, Yad Vashem, The Holocaust Memorial, JerusalemSince writing my previous post, I have read (hat tip: Ninth Level Ireland) a trenchant statement of the opposite view by Prof William Schabas, Director of the Irish Centre for Human Rights at NUI Galway. His argument is twofold. First, he refers to the EU Framework Decision on racism and xenophobia (pdf). Second, he argues that, whatever about that Decision, Ivring should not as a matter of principle be granted a prestigious platform by the Lit & Deb. He illustrates this second point with a rhetorical flourish:

There are also cranks who believe that the earth is flat, but we don’t invite them to deliver seminars in the geography department.

And he concludes that

… any reasonable reading of the EU Framework Decision should lead to the conclusion that he cannot be welcome in Ireland, or at the University.

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Free speech means freedom for the thought we hate

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| Freedom of Expression, IFCO

Anthony Lewis 'Freedom for the Thought that we Hate' book cover, via Basic Books websiteFreedom of expression matters most where the expression in question is unpopular: if it it is to mean anything, it must mean “freedom for the thought that we hate” (US v Schwimmer 279 US 644, 655 (1929) Holmes J); it covers not only mainstream ideas which hardly need protection, but also those that “offend, shock or disturb the State or any sector of the population” (Handyside v United Kingdom 5493/72 [1976] ECHR 5 (7 December 1976) [49]). That is why this blog has defended the right to freedom of expression especially when it involves unpopular opinions or unpopular speakers.

There are no more unpopular ideas than the denial of the Holocaust, and there are no more unpopular speakers than David Irving. Even here, in my view, we should give speech a chance: the best way to ensure that we never forget the Holocaust is to debate it at every turn, not to suppress speech from Irving’s ilk. The Oxford Union got good headlines last year when it invited Irving to debate about freedom of expression. Now it seems that NUI, Galway’s Literary and Debating Society are about to repeat the trick. …

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Privacy, refugees, children

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| Irish cases, Privacy

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

Photos of sex offender may not be published
Callaghan v Independent News and Media Ltd: Northern Ireland High Court, Judgment was given by Mr Justice Stephens on January 7th, 2009 [2009] NIQB 1

An unpixelated photograph of sex murderer Kenneth Callaghan, from which he could be identified, cannot be published. Mr Callaghan has served 21 years of a life sentence and is due for supervised release, and Mr Justice Stephens ruled that the publication of such a photograph, by disrupting his supervision and support regime, would increase the risk to the public by increasing his risk of re-offending. He granted a separate order that no photograph of any prisoner in the Prisoner Assessment Unit of the Northern Ireland Prison Service could be published without 48 hours’ notice. …

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Sedition and Lèse-majesté

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| Censorship, Defamation Bill 2006, Freedom of Expression, Sedition

Emblem of Thailand, via widipedia.Two Australian stories recently caught my eye; and, although at first blush the only link is Australia, there is in fact a deeper connection. The first is from the BBC news Website:

Writer jailed for Thai ‘insult’

Australian writer Harry Nicolaides has been sentenced to three years in a Thai jail for insulting the monarchy. Nicolaides wrote a novel four years ago, which contained a brief passage referring to an unnamed crown prince. It sold just seven copies.

He admitted the charge of insulting the royal family, but said he was unaware he was committing an offence. Thailand’s monarchy is sheltered from public debate by some of the world’s most stringent “lèse-majesté” laws.

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