Eoin – Page 27 – Cearta.ie

Reality and Illusion in EU Data Transfer Regulation post-Schrems

Posted on 29 September, 2016 by Eoin

On the first anniversary of the judgment of the Court of Justice of the European Union in Case C-362/14 Schrems, Professor Christopher Kuner (pictured left), Professor of Law at the Vrije Universiteit Brussels, will give a public lecture on

Reality and Illusion in EU Data Transfer Regulation post-Schrems

The lecture will be held in the Neill Theatre, Trinity Long Room Hub, Trinity College Dublin, on Thursday 6 October 2016, at 1:00pm.

In Case C-362/14 Schrems v Data Protection Commissioner [2015] ECR I-nyr (Grand Chamber, 6 October 2015), the Court of Justice of the European Union invalidated the EU-US Safe Harbour arrangement allowing personal data to be transferred to the US. The judgment is a landmark in the Court’s data protection case law, and illustrates the tension between the high level of legal protection for data transfers in EU law and the illusion of protection in practice. The judgment has undermined the logical consistency of the other legal bases for data transfer besides the Safe Harbour, and reactions to it have largely been based on formalism or data localization measures that are unlikely to provide real protection. Schrems also illustrates how many legal disagreements concerning data transfers are essentially political arguments in disguise.…

Some forthcoming legislation on the administration of justice, cybercrime, education, intellectual property, and privacy

Posted on 28 September, 201629 September, 2016 by Eoin

Government Chief Whip Regina Doherty has announced the Government’s Legislation Programme for the Autumn Session 2016 (pdf). It is a considerable update of the programme published last June (pdf) when the government came into office.

The June programme had the feel of a holding document, published to get a new government to the Summer Recess. This programme has a far more substantial feel about, published to demonstrate the government’s confidence in its capacity to promote and enact legislation.

After the publication of the June programme, I examined proposed legislation from the Department of Education and Skills (here; and see also here), the Department of Jobs, Enterprise and Innovation (here; and see also here and here), and the Department of Justice and Equality (here and here). Under those headings, very little has changed. But there are some notable additions, not least of which is the Interception of Postal Packets and Telecommunications Messages (Regulation) (Amendment) Bill. All we are told is that work is underway on a Bill to “amend various pieces of legislation in respect of electronic communications”. There is no further explanation. This is probably the Bill to provide for further covert surveillance of electronic communications promised by the Minister earlier this Summer.…

National Anthems and Political Dissent

Posted on 28 September, 20169 October, 2017 by Eoin

For various reasons (set out here, here, here, and here), I have been musing recently about what should and should not be in a National Anthem Bill. In the US, legislation provides that, when the national anthem (since 1931, “The Star-Spangled Banner“) is being played, “persons present should … stand at attention with their right hand over the heart” (emphasis added). Although the photograph left shows Barak Obama doing so as President in 2009, there was a minor controversy during the 2008 election when he neglected to do so at a campaign event. More recently, US gymnastics gold medalist Gabby Douglas apologized in the face of criticism when she neglected to do so during the playing of national anthem at an olympics medal ceremony. Neither Obama nor Douglas meant anything by it. Obama said his grandfather taught him to put his hand on his heart only during the pledge of allegiance, and only to sing during the national anthem. And Douglas was just overcome by the emotion of the moment.

But some people do take advantage of the anthem to make a political point. At the 1968 Olympics, US 200-metre medallists Tommie Smith (gold) and John Carlos (bronze) raised their own gloved hands during the national anthem while looking down as a way of opposing US state-sanctioned racism.…

Harmful Communications and Digital Safety

Posted on 27 September, 201627 September, 2016 by Eoin

The Law Reform Commission has today published its long-awaited (pdf) a Report on Harmful Communications and Digital Safety (pdf). It contains 32 recommendations for reform, and includes a draft Harmful Communications and Digital Safety Bill to implement them. In my view, the most important recommendation is the proposal to establish a statutory Digital Safety Commissioner, modelled on comparable offices in Australia and New Zealand. The Commissioner’s function would be to promote digital safety, including an important educational role to promote positive digital citizenship among children and young people. The Commissioner’s role would also include publication of a statutory Code of Practice on Digital Safety, to set out nationally agreed standards on the details of an efficient take-down procedure. As the Law Reform Commission explains:

Under the proposed statutory system, individuals would initially apply directly to a social media site to have harmful material removed in accordance with agreed time-lines: this is similar to the statutory system in place in Australia. If a social media site did not comply with the standards in the Code of Practice, the individual could then appeal to the Digital Safety Commissioner, who could direct a social media site to comply with the standards in the Code.

…

Reform of the law of defamation – the defence of innocent publication (Muwema v Facebook part 2)

Posted on 27 September, 20163 October, 2023 by Eoin

1. Introduction
The decision of Binchy J in Muwema v Facebook Ireland Ltd [2016] IEHC 519 (23 August 2016) demonstrates that, on the question of the liability of internet intermediaries for defamatory posts on their platforms, an important part of the answer is provided by application of the defence of innocent publication provided in section 27 of the Defamation Act 2009 (also here).

Binchy J granted a Ugandan lawyer a Norwich Pharmacal order requiring Facebook to identify the holder of a pseudonymous account which, the lawyer alleged, contained posts that were defamatory of him. However, Binchy J declined to grant injunctions requiring Facebook either to remove allegedly defamatory posts from the account or to prevent the material in them from being re-posted, on the grounds that Facebook could rely on the defence of innocent publication in section 27 of the 2009 Act and on the hosting immunity conferred by Regulation 18 of the European Communities (Directive 2000/31/EC) Regulations 2003 (SI No 68 of 2003) (transposing Article 14 of the e-Commerce Directive Directive 2000/31/EC into Irish law).

He came to that conclusion, especially as regards section 27, with some unease, and he doubted very much if that consequence was intended by the Oireachtas ([65]).…

Internet defamation and the liability of intermediaries (Muwema v Facebook part 1)

Posted on 26 September, 201618 February, 2017 by Eoin

1. Introduction
The liability of internet intermediaries for defamatory posts on their platforms was central to the decision of Binchy J in Muwema v Facebook Ireland Ltd [2016] IEHC 519 (23 August 2016). A Ugandan lawyer objected to allegedly defamatory posts on a pseudonymous Facebook account, and Binchy J gave an order requiring Facebook to identify the account-holder. However, he declined to grant injunctions requiring Facebook either to remove the posts or to prevent the material in them from being re-posted, on the grounds that Facebook could rely on the defence of innocent publication in section 27 of the Defamation Act 2009 (also here).

On the other hand, in the earlier Petroceltic International plc v Aut O’Mattic A8C Ireland Ltd (High Court, unreported, 20 August 2015, amended 8 September 2015; noted here (pdf) and here (pdf)) (see Irish Independent | Irish Times) Baker J not only gave an order requiring the defendant to identify an account-holder but also granted an injunction requiring the defendant to remove allegedly defamatory posts from a blog hosted on its site. Baker J simply made the relevant orders, whereas Binchy J handed down a full judgment explaining that section 27 was the reason why he refused to award the injunctions against the defamatory posts.…

Even as Public Funding to Universities Decreases, Government Preoccupation with Control Increases

Posted on 23 September, 201628 September, 2016 by Eoin

I have the following op-ed in the current edition of the University Times:

Even as Public Funding to Universities Decreases, Government Preoccupation with Control Increases

The political agenda looks for control over the raising and expenditure of funding received from non-state sources.

TCD front, via University Times As students return to college, the politicians return to Leinster House. Both students and politicians are facing very interesting terms, and each group has the capacity to make life difficult for the other.

One of the issues on the returning government’s plate is the vexed question of third-level funding. All sides are agreed that our higher education sector is woefully underfunded. The ongoing fall of Irish universities in international rankings is due, in no small part, to the funding cutbacks that began in 2003 and were cumulatively deepened after the 2008 global financial crisis. A recent report by an expert group, chaired by trade unionist Peter Cassells, made several recommendations on the future funding for higher education, and any choice the government makes will be controversial.

Two questions will have to be answered. The first is: who pays? The second is: how much? …

CAO cynicism

Posted on 22 August, 201614 September, 2016 by Eoin

It’s that time of the year when the Central Applications Office (CAO) makes offers of third level places to Ireland’s school-leavers. Places are allocated on the basis of a complex but transparent system of supply (of [level 6, level 7 and level 8] courses by third level institutions), demand (for courses by school leavers), and grades (obtained by school leavers in the second level terminal examination, the Leaving Certificate). The grades are converted into points, and the number of points of the last-admitted candidate to a course can be regarded as the cut-off for qualification for entry to that course. The race for points for College places has become increasingly utilitarian over recent years, and the headlines this morning are no different:

Stem steams ahead as students abandon the arts ship

Points for arts courses fall to a new low as students question value of such degrees

Students have been bombarded by calls to study science, technology, engineering and maths (STEM) over the past few years. The message seems to be working, as points for those courses have risen across the board for the first round of CAO offers. Points for arts courses have fallen to a new low as students question the value of those degrees, …

Also: CAO offers: Sharp points rise for courses linked to recovery – Engineering, architecture, construction and business up as arts falls to new low; Focus on construction and engineering results in higher points – Points drop across the board for arts and social science degrees; Business and technology jobs surge as over 52,000 receive CAO offers – Students target courses to give them skills to travel globally.…