Author: Eoin

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

Tory Island and Unjust Enrichment – a sad story ends not with a bang but a whimper

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| Restitution

BaidinWhen I was in school, I learned a song in Irish called Báidin Fheilimí. It’s about Phelim’s boat, sailing to islands off Donegal, in the north-west of Ireland. In the first verse, it sails to Gola Island; in the second, it sails to Tory Island; and, in the third, the lively little boat is wrecked on the rocks off Tory. The song left a romantic image of Tory in my mind. Neville Presho probably had a similar image; but, like Phelim’s boat, it has been wrecked on Tory rocks. He had a holiday home on the island. Until, one day, he returned to the island, and found that the house was gone, replaced by car park for an adjacent hotel. I have, on this blog, been following his action against the hotel (see here, here, here, here). In Presho v Doohan [2009] IEHC 619 (17 July 2009), Murphy J held that the appropriate remedy lay not in reinstatement of the demolished house “but in the provision of a comparable dwelling on Tory Island or the open market value of a comparable dwelling on the island”. He later held that this amounted to €46,000.…

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The Heads of an Irish Bill to ensure GDPR compliance are very welcome, but they raise questions about repeals and compensation

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| GDPR, Privacy

GDPRThe Government has today published the General Scheme of the Data Protection Bill 2017 (press release | scheme (pdf)) to give further effect in Irish law to the EU General Data Protection Regulation and to implement the associated Data Protection Directive for law enforcement bodies. The publication of the Heads is a very welcome development indeed. There will, in the coming weeks and months, no doubt be much discussion of the Heads, and I hope that the draft will be improved as a consequence. For now, I want to make two points, about repeals of existing legislation, and the availability compensation for infringement of the GDPR.

Stamp Act Repealed (via Wikipedia; element)The first point is brief enough. Existing Irish law is contained in the Data Protection Acts 1988 and 2003 (also here and here; the ODPC’s unofficial but extremely helpful administrative consolidation is here), which are not very easy to work with. Head 5 deals with “Repeals”. My fervent hope is that the 1988 and 2003 Acts will be repealed, and that the new Bill will provide a single one-stop-shop for all Irish law on data protection. My hope has been neither fulfilled nor dashed by Head 5. It’s blank. The explanatory note says that the existing Acts “will be largely superseded by” the GDPR and Directive, and that this “Head will be completed during the drafting process”.…

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Legal deposit of digital publications

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| Copyright, Digital deposit

Digital Deposit, via NLAThe Department of Arts, Heritage, Regional, Rural and Gaeltacht Affairs, on behalf of the National Library of Ireland, is currently undertaking “a consultation on the legal deposit of published digital material in the 21st century in the context of copyright legislation” (see here and here). In particular, the Department welcomes submissions in relation to three questions:

Question 1: Should the policy of collecting, preserving and making available the published output of the nation for the benefit of the public be extended to include all contemporary publication formats of Irish interest including online digital formats e.g.,.ie websites?

Answer: Yes.
I have already set out my views on this issue on this blog. The starting point is Section 198 of the Copyright and Related Rights Act, 2000 (also here), which provides that publishers of books and other paper publications must deliver a copy of each book or publications published in the state to various copyright deposit libraries. Most countries worldwide have similar provisions, and they ensure the preservation and the availability of a nation’s published heritage. With the rise of digital publishing, it is increasingly being recognised that print deposit is incomplete, and that a comprehensive preservation of a nation’s published heritage requires that copyright deposit should extend to online publications as well.…

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Damages and compensation for invasion of privacy and data protection infringements

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| GDPR, Privacy

Hulk HoganThe saga in Bollea v Gawker shows two remedies for invasion of privacy. Hulk Hogan (real name, Terry Gene Bollea; pictured left), is a former professional wrestler and American television personality. Gawker was a celebrity news and gossip blog based in New York. In October 2012, Gawker posted portions of a secretly-recorded video of Hogan having sex in 2006 with one Heather Cole, who (as Heather Clem) was the then-wife of his then-best-friend (the wonderfully-monikered radio personality Bubba “the Love Sponge” Clem). In March 2016, a jury found Gawker liable for invading Hogan’s privacy, and awarded him a total US$140m – Gawker itself was held liable for US$115m in compensatory damages (including US $60 million for emotional distress), and US$15m in punitive damages; Gawker’s CEO, Nick Denton, was held personally liable for US$10m in punitive damages.

Gawker and Denton immediately announced that they would appeal; but first Gawker, and then Denton, both soon filed for bankruptcy. In August 2016, Gawker itself was shut down, and the media group of which it was a centrepiece was sold for US$135m. This provided the funds for a settlement: in November 2016, the case was ultimately settled for US$31m; and, in March 2017, Denton came out of bankruptcy.…

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Blasphemy is in the news again; it should be removed from the Constitution, as the Constitutional Convention recommended

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| Blasphemy

Stephen Fry (via Flickr)The Irish Independent reports that the Gardaí (the Irish police) have launched a blasphemy probe into comments made by Stephen Fry (pictured left) on the television show The Meaning of Life:

Gardaí have launched an investigation after a TV viewer claimed comments made by Stephen Fry on an RTE show were blasphemous. Independent.ie can reveal that a member of the public reported the allegation to Ennis garda Station following a broadcast of ‘The Meaning of Life’, hosted by Gay Byrne, in February 2015.

The story has been picked up by the media, in Ireland and abroad – including the BBC, CBS, the [UK] Independent, the Irish Times, RTE, the Mail online, The Journal.ie the Sunday Times (sub req’d), the Observer, the Sunday Telegraph, and the Sydney Morning Herald.

The crime of blasphemy is provided for in section 36 of the Defamation Act, 2009 (also here). Subsection (1) provides that a “person who publishes or utters blasphemous matter” shall be guilty of an offence; anyone guilty of the offence is liable to a fine not exceeding €25,000.

Subsection (2) provides a threefold definition of when a person publishes or utters blasphemous matter.…

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Stand and deliver, your money or your wife! Of Georgian highwaymen, modern sham marriages, illegal contracts, and abuse of the legal process

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| Contract, Restitution

Two sole traders form a partnership, and then fall out, so that one sues the other for outstanding monies. It is a common enough story now, and was even in the early 1700s. There is normally little of general interest in such case; but, in 1725, the additional facts in Everet v Williams earned it a notoriety that persists to this day, because the plaintiff had sued the defendant for the proceeds of highway robbery, and there had been a classic falling out amongst thieves. Unsurprisingly, the Court declined to lend its aid to the claim, and dismissed the case with costs (see Everet v Williams (1725) reported (1787) 2 European Magazine 360 (pdf) and (1893) 9 Law Quarterly Review 197 (pdf); see also William David Evans (ed) Pothier on Obligations (Strahan, London, 1802, vol 2) 3 (pdf); Nathaniel Lindley A Treatise on the Law of Partnership (1st ed, Johnson & Co, London, 1860) 161 (pdf); Robert Megarry Miscellany-at-Law (Sweet & Maxwell, London, 1955) 76 (pdf); mentalfloss).

The Court’s approach in this case was replicated by Twomey J in English v O’Driscoll [2016] IEHC 584 (25 October 2016), whilst the case itself was cited by Humphreys J in the High Court in KP v The Minister for Justice and Equality [2017] IEHC 95 (20 February 2017).…

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The Future of the Law of Restitution for Unjust Enrichment in Ireland

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| Conferences, Lectures, Papers and Workshops, Restitution

Euro notes = Irish flag (notes via https://en.wikipedia.org/wiki/Euro_banknotes)The Private Law Discussion Group in the School of Law, Trinity College Dublin, is delighted to welcome Dr Niamh Connolly (University College London) next Thursday, 30 March 2017, at 2:00pm, in the Trinity Research in Social Sciences (TRiSS) Seminar Room, 6th floor, Arts Building, TCD (map), to give a paper on


The Future of Restitution in Ireland.

All are welcome, particularly those with a research interest in private law, unjust enrichment and restitution. This event is open to the public and free of charge. If you would like to attend, please register on Eventbrite.

Niamh Connolly (via UCL website)Dr Niamh Connolly (pictured right) is a lecturer at University College London, where she moved from Trinity College Dublin in 2016. Her principal research and teaching interest is in unjust enrichment law. She is interested in how Irish private law compares to that of England and Wales, and in differences in legal culture that affect the substantive law in these jurisdictions. Her paper will seek to interpret the sparse Irish case law on unjust enrichment in light of this wider question about the specificity of Irish law. In particular, Niamh will ask whether Irish legal culture is less formalist than that of England and Wales, and if so, how that affects Irish restitution law.…

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The Right to be Forgotten – is it time to teach the world to sing in perfect harmony?

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| Conferences, Lectures, Papers and Workshops, Privacy

ISEL logo, via ISEL websiteThe Irish Society for European Law will hold an Update on Data Protection, next Thursday, 23 March 2017, at 6:30pm in the Ormond Meeting Rooms, 31-36 Ormond Quay Upper, Dublin 7.

The event will be chaired by the Hon Ms Justice Mary Finlay Geoghegan, Judge of the Court of Appeal; and the speakers will be Bruno Gencarelli (Head of the Data Flows & Protection Unit, DG Justice & Consumers, European Commission), Andreas Carney (Partner, Matheson), Emily Gibson BL (Law Library, Dublin), and me.

The event is open to all and is free of charge to ISEL members (there is a €30 charge for non-ISEL members, payable on arrival). Places are limited and will be allocated on a first come, first served basis. Please register for the event at www.isel.ie. 1.5 CPD points are available for this event.

Harmony, via Wikipedia (detail)The title of my talk is: The Right to be Forgotten – is it time to teach the world to sing in perfect harmony? I will consider whether delinking in support of the right to be forgotten [R2bF] ought to have worldwide effect. My talk will be in three brief parts. The first part will consider CJEU R2bF caselaw and member-state developments on the question whether an R2bF delinking derived from EU law should be effective worldwide or just inside the EU.…

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