Eoin – Page 21 – Cearta.ie

The copyright implications of a publicly curated online archive of Oireachtas debates

Posted on 2 October, 201730 April, 2020 by Eoin

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.…

Compensation for breach of the proposed ePrivacy Regulation [Ongoing updates]

Posted on 29 September, 20177 June, 2018 by Eoin

Last major update: 15 January 2018

Note: a line was added at the end on 7 June 2018.

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.…

It’s time to abolish juries in defamation cases

Posted on 28 September, 201729 September, 2017 by Eoin

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.…

The UK’s Data Protection Bill 2017: repeals and compensation – updated

Posted on 14 September, 201729 September, 2017 by Eoin

In the UK, the Department of Digital, Culture, Media and Sport (DCMS) has today published the Data Protection Bill 2017, to incorporate the General Data Protection Regulation (GDPR) and to implement the Police and Criminal Justice Authorities Directive (PCJAD) (respectively: Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC; and Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA; aka the Law Enforcement Directive). The progress of the Bill through Parliament can be tracked here.

In Ireland, when the Department of Justice published the the General Scheme of the Data Protection Bill 2017 (scheme (pdf)), I expressed two concerns, both of which are equally applicable to the UK Bill.…

Compensation for breach of the General Data Protection Regulation

Posted on 22 August, 2017 by Eoin

I have just posted a paper on SSRN entitled “Compensation for breach of the General Data Protection Regulation”; this is the abstract:

Article 82(1) of the General Data Protection Regulation (GDPR) provides that any “person 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 controller or processor for the damage suffered”. As a consequence, compliance with the GDPR is ensured through a mutually reinforcing combination of public and private enforcement that blends public fines with private damages.

After the introduction, the second part of this article compares and contrasts Article 82(1) GDPR with compensation provisions in other EU Regulations and Directives and with the caselaw of the CJEU on those provisions, and compares and contrasts the English version of Article 82(1) GDPR with the versions of that Article in the other official languages of the EU, and concludes that at least 5 of the versions of Article 82(1) GDPR are unnecessarily ambiguous, though the CJEU (eventually, if and when it is asked) is likely to afford it a consistent broad interpretation. However, the safest course of action at this stage is to provide expressly for a claim for compensation in national law.

…

What is the current status of GDPR incorporation in the EU’s 28 Member States? [Ongoing updates]

Posted on 27 July, 201711 September, 2019 by Eoin

Last updated: 7 May 2018

Having looked, in my previous post, at what Article 82(1) of the General Data Protection Regulation says and means in each of the EU’s 24 official languages, I’m interested in this post in the related question of the current status of incorporation* of the GDPR in each of the EU’s 28 Member States. I am interested in particular in whether provision has been made in any incorporating* legislation or draft for an express claim for compensation or damages to give effect to Article 82 GDPR. The list below is the current state of play so far as I have been able to find out. I would be grateful if you correct any errors and help me fill in the blanks – via the comments below, via email, or via the contact page on this blog – I would very grateful indeed.

Complete incorporation: Legislation to incorporate* the GDPR has been enacted in Austria, Belgium (though a further Bill is pending), Germany, Poland, Slovakia and Slovenia (a French Act anticipated some of its requirements, though a full incorporation Bill is pending). About half of the Member States are likely to complete the process before 25 May 2018.…

What is the literal meaning of Article 82(1) GDPR in each of the EU’s 24 official languages?

Posted on 18 July, 201719 August, 2017 by Eoin

I’m trying to work out what Article 82(1) of the General Data Protection Regulation (Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC) says and means in each of the 24 official languages of the EU institutions, and I’d be very grateful for your help. In English, Article 82(1) GDPR provides

Any person 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 controller or processor for the damage suffered.

As I have said before on this blog (here, here, here), I think that this formulation is rather odd. It does not provide, in the present tense, that a person whose rights have been infringed “has” the right to receive compensation. Instead, it provides, in a much more congtingent fashion, that a plaintiff “shall have” such a right, which seems to imply that there is something more to be done in national law before plaintiffs actually have the claim.…

Orders against social networks to identify anonymous posters of defamatory content (Muwema v Facebook part 3)

Posted on 5 July, 201718 July, 2017 by Eoin

Fred Muwema is a prominent lawyer in Uganda, who claimed that various Facebook pages in the name of Tom Voltaire Okwalinga, or TVO, defamed him. In Muwema v Facebook Ireland Ltd [(No 1)] [2016] IEHC 519 (23 August 2016), Binchy J declined to grant injunctions requiring Facebook either to remove the posts from the account or to prevent the material in them from being re-posted, and I considered these holdings in one of my earlier posts on the case (also here). However, Binchy J did grant an order requiring Facebook to identify TVO, and I considered this aspect of the case in another of my earlier posts on the case (also here). This was not a difficult issue, as the defendant had consented to the order. However, before the order could be perfected, the defendant sought the leave of the Court to introduce new evidence with a view to opposing the making of the order. In Muwema v Facebook Ireland Ltd (No 2) [2017] IEHC 69 (08 February 2017), Binchy J allowed the new evidence to be introduced; and, having considered it, he declined to make the order after all. It is to that aspect of the case that this post is directed.…