Further to my earlier post about last week’s Current Legal Problem lecture on

Spies Like Us? Frank Snepp and George Blake: Freedom of Speech and Restitutionary Remedies

the paper is now available here, via Scrib’d. It’s a good remedy for insomnia. All comments gratefully received.

If you like this post, please click on this link to pass it on. Thanks!

Hide Sites

It all began innocently enough: just before Christmas, Sunday Times journalist John Burns wrote a piece lamenting the shortcomings of blogging in Ireland. Leading bloggers naturally begged to differ. A month later, the spat was picked up by Trevor Butterworth writing on Forbes.com, who noted that “it’s hard to think of a free country more suited to blogging than Ireland”. By the same token, it’s at least as hard to think of a country more given to litigation; and the point was illustrated by a story retailed almost en passant in Butterworth’s piece:

As one journalist told me, Ireland’s media is currently abuzz over a “confidential” legal settlement against a blogger, who allegedly had to pay almost $140,000 in damages for a libelous post, seen by few, swiftly purged from the site, and readily apologized for.

This was intriguing. By the end of the week, John Burns in the Sunday Times had the full story:

A blogger has agreed a €100,000 settlement after libelling Niall Ó Donnchú, a senior civil servant, and his girlfriend Laura Barnes. It is the first time in Ireland that defamatory material on a blog has resulted in a pay-out. … In December 1, 2006, a blogger who styles himself as Ardmayle posted a comment about the couple … Following a legal complaint, he took down the blog and in February 2007 he posted an apology which had been supplied by Ó Donnchú’s and Barnes’ lawyer … However, the pair subsequently issued separate proceedings. It is understood that the €100,000 settlement was agreed shortly before the case was due before the High Court.

Indeed, there had been quite a detailed report at the time in the Sunday Independent; and in the last week, many blogs have pored over the story.

There’s nothing new in online defamation; the same basic legal principles apply online as they do offline; the medium may change, but the legal consequences of the message remain the same. But the story does raise some interesting legal issues. Mark Coughlan on TheStory.ie pointed out that, before the storm blew up this week, Ardmayle had been “little known, to say the least”, and he quite rightly queried the actual damage the blog had done to the plaintiff’s reputations. UCD law lecturer TJ McIntyre picked up that point:

The level of damages in defamation reflects the extent of publication – i.e. the extent to which the defamatory material was actually read. This is not (despite the best efforts of plaintiffs’ lawyers) the same as the extent to which it might have been read. Consequently (leaving aside other factors such as the gravity of the allegations) damages should be greatly reduced where the audience can be shown to be negligible. Potential readability worldwide notwithstanding.

For him, therefore, the case highlights the importance of keeping good server logs to counter the all-too-easy assumption that “availability online automatically equals a mass audience”.

Ireland’s libel laws have recently been overhauled by the Defamation Act, 2009, which came into force on 1 January this year. Section 31(4) provides that the court in a defamation action shall have regard to a range of factors in making an award of general damages, including:

(b) the means of publication of the defamatory statement including the enduring nature of those means,
(c) the extent to which the defamatory statement was circulated, … [and]
(f) the importance to the plaintiff of his or her reputation in the eyes of particular or all recipients of the defamatory statement …

These considerations tend to reinforce TJ’s point about the importance of keeping good server logs. It is hard to tell from the reports whether any of the Act’s defences might have availed the blogger, though the new defence of fair and reasonable publication on a matter of public interest, whilst hobbled, may have done.

The Act is a welcome, but incomplete, reform – incomplete not least because it takes little account of the increasing trend towards online communication. In particular, it does not attempt to achieve inter-operability between its restatement of the traditional defence of innocent publication and the defence provided to intermediary service providers by the implementation of the E-Commerce Directive.

Finally, there are questions of the compatibility of this kind of outcome with the free speech provisions of the Irish Constitution and of the European Convention on Human Rights. There are, in particular, emerging arguments that various European Courts have clearly moved to grant traditional press freedoms not only to traditional media but also to online actors such as bloggers engaged in “the creation of forums for public debate”. This might not have protected Ardmayle’s obscure blog, but if – contrary to the views John Burns expressed in the article at this beginning of this post – the Blog O’Sphere continues to develop as a vibrant forums for public debate, then future bloggers in Ardmayle’s shoes may be able to rely on the Constitution and the Convention. Until then, we will all have to tread softly.

Reposted from Index on Censorship.

If you like this post, please click on this link to pass it on. Thanks!

Hide Sites

Over sixty years ago, the Faculty of Laws at University College London established the Current Legal Problems lecture series and accompanying annual volume as a major reference point for a broad range of legal scholarship opinion, theory, methodology, and subject matter, with an emphasis upon contemporary developments of law. The lectures are held at the Faculty of Law, Bentham House, Endsleigh Gardens, London WC1 from 6-7pm; they are open to the public and free of charge. This week’s current legal issue is:

Spies Like Us? Frank Snepp and George Blake: Freedom of Speech and Restitutionary Remedies

“Espionage is a serious business” sang a moderately famous Irish pop singer of the 1980s. And so it is. It can be even more of a business when former spies seek to publish their memoirs, and things can get very serious indeed if they fail to seek the clearance of their former spymasters in advance. The decisions of the Supreme Court of the United States in Snepp v US 444 US 507 (1980) and of the House of Lords in AG v Blake [2001] 1 AC 268; [2000] UKHL 45 (27 July 2000) make a fascinating pair of cases in which former spies (unsuccessfully) argued that a restitutionary remedy against uncleared publication of their memoirs infringed their speech rights.

The paper will seek to do three things. First, it will present a thorough analysis of the stories behind the decisions. How the opinion for the Court in Snepp evolved is a fascinating tale in its own right; so too are many elements of the Blake saga, not least the question of where the Snepp-like remedy in that case actually came from. So, the paper will begin with these stories, tales and sagas.

Second, it will look at the legitimacy of the restitutionary remedies in the cases in their own terms, and to suggest in particular that whilst there may be some legitimacy to the remedy announced in Blake, there is none for that announced in Snepp. Working out quite why this was so will help to clarify two difficult areas in the law of restitution: how, if at all, the law of restitution can justify awarding restitutionary damages for breach of contract, and proprietary remedies generally.

Third, it will measure the remedies awarded in Blake and Snepp against applicable speech standards (the First Amendment to the US Constitution and Article 10 of the European Convention on Human Rights, respectively), and to suggest in particular that the speech analyses in both cases were sadly lacking. Working out quite why this was so will help to clarify a difficult area of free speech law: how, if at all, common law and equitable doctrines and remedies can be made subject to constitutional speech standards.

If you like this post, please click on this link to pass it on. Thanks!

Hide Sites

As the Supreme Court of Canada adopts a species of the responsible journalism defence to libel claims, the case that embodied the best opportunity that Irish law has had so far to do the same has come to an end. In Hunter v Duckworth, Ó Caoimh J in the High Court ([2003] IEHC 81 (31 July 2003)) seemed to approve of the defence (at least in the view of Charlton J in a later case), but the Supreme Court ducked the question and returned the case to the High Court. However, the case has now been settled. According to the Irish Times:

English barrister apologises to two Birmingham Six

An English barrister has apologised before the High Court to two members of the wrongly jailed Birmingham Six who had sued him for defamation over a pamphlet written by him which contained material meaning, the men alleged, they were “mass murderers”.

Sir Louis Blom-Cooper QC in an apology read by his counsel Douglas Clarke yesterday, said he “sincerely regrets certain unintended inferences” which have been drawn from the publication of the pamphlet in 1997.

He said “an unqualified apology for any suggestion of the guilt” of Hugh Callaghan and Gerry Hunter was “overdue”. “It is now made unequivocally,” the apology said.

Index on Censorship adds:

Birmingham Six Libel Case Settled

Barrister Louis Blom-Cooper has settled in a libel action brought against him by Birmingham six pair Hugh Callaghan and Gerry Hunter at the Dublin High Court. Hunter and Callaghan claimed that a 1997 pamphlet by Blom-Cooper, The Birmingham Six and Other Cases, had implied that they could be guilty of carryimg out the 1974 Birmingham pub bombings, in which 21 people were killed.

Blom-Cooper has apologised for any “unintended suggestion” of guilt. Other elements of the settlement cannot be revealed.

Ireland has one of the most expensive libel jurisdictions in Europe.

So ended the first case to make a strong argument about the impact of the constitution on Irish libel law. I sincerely hope it won’t be the last.

If you like this post, please click on this link to pass it on. Thanks!

Hide Sites

In an earlier post, I suggested a wording for a complete revision of Article 40.6.1(i) of the Constitution. That makes a recent Irish Times poll very interesting:

65% would support a referendum to remove the reference to blasphemy from the Constitution. So, how about it, Minister?

If you like this post, please click on this link to pass it on. Thanks!

Hide Sites

The free speech guarantee in Article 40.6.1(i) of the Constitution is a fragile freedom, much to the inglorious discredit of Irish democracy. However, there is a slim chance that the controversy over the blasphemy provisions in Part 5 of the newly-commenced Defamation Act, 2009 might provide an opportunity to replace the current text of Article 40.6.1(i) with something rather more robust. Consequently, much more in hope than expectation, this post concludes with a suggestion for a replacement text, on which I would welcome any comments and suggestions.

But first, the context. The blasphemy provisions in the 2009 Act are provoking quite a bit of commentary in the media, both in Ireland (Sunday Independent | Sunday Tribune | Irish Times here and here | Sunday TImes) and abroad (BBC | CNN | Guardian | MSNBC | New York Daily News | Sydney Morning Herald | Washington Post). Even the Drudge Report has commented on the story; and there are more here). I particularly like the Post piece, because I’m quoted in it. More seriously, much of the coverage revolves around the publication by Atheist Ireland of 25 potentially blasphemous quotations in the hope of provoking a prosecution; and they’ve opened an online petition to challenge the blasphemy provisions of the 2009 Act. As Fiona argues here and here, it is actually rather difficult to commit the offence. Difficult perhaps, but not impossible – it’s unlikely that Atheist Ireland’s 25 quotes do so, though this poem has been found to be blasphemous, and questions have been seriously raised about this cartoon.

The Minister’s justification for the offence was that the last line of Article 40.6.1(i) of the Constitution provides that the “publication or utterance of blasphemous … matter is an offence which shall be punishable in accordance with law”. There have been some calls to amend this provision; but, according to the Sunday TImes, a spokesman for the Department of Justice said:

The minister is quite happy to have a referendum to remove the reference to blasphemy from the constitution, but doesn’t believe that should be done this year, given the other serious challenges facing the country.

The First Report of the Joint Oireachtas Committee on the Constitution (July 2008) concerned freedom of expression in Article 40.6.1(i) with a particular focus on blasphemy. As I noted at the time, the Committee that the Article is unsatisfactory and drafted in such a way that the limitations on free speech are accorded undue prominence, and recommended that it therefore be amended along the lines of European Convention on Human Rights. However, the Committee went and spoiled it all by concluding that the amendment was not immediately necessary, but should be undertaken when an appropriate opportunity presented itself.

If there is to be amendment to Article 40.6.1(i), I think it should go considerably further than removing the reference to blasphemy in the last sentence of Article 40.6.1(i), or even removing that last sentence itself. Like the Joint Oireachtas Committee, I think that the entire article should be replaced; but I think we should go even further than that. In my submission to the Committee, I argued that Article 10 should be a starting point but not the end point, and I provided an alternative text:

Everyone has the right to freedom of thought, belief, speech and expression. This right includes the freedom to seek, receive, hold and impart convictions, opinions, information and ideas of any kind in any form without interference by public authority. This right also includes the freedom of the press and other media of communication.

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such necessary limits as are prescribed by law and proportionate only to the interests of national security, territorial integrity, public safety or the common good, the prevention of disorder or crime, the protection of health or morals, the protection of the reputation or the rights of others, preventing the disclosure of information entitled to a reasonable expectation of privacy or otherwise received in confidence, or maintaining the authority and impartiality of the judiciary.

Comments, please, on this suggestion.

If you like this post, please click on this link to pass it on. Thanks!

Hide Sites

Randall P Bezanson has just pubished another very important book on on Art and Freedom of Speech (University of Illinois Press, 2009), exploring the decisions of the US Supreme Court relating to artistic expression under the First Amendment. From the abstract:

… In considering the transformative meaning of art, the importance of community judgments, and the definition of speech in Court rulings, Bezanson focuses on the fundamental questions underlying the discussion of art as protected free speech: What are the boundaries of art? What are the limits on the government’s role as supporter and “patron” of the arts? And what role, if any, may core social values of decency, respect, and equality play in limiting the production or distribution of art?

Accessibly written and evocatively argued, Art and Freedom of Speech explores these questions and concludes with the argument that, for legal purposes, art should be absolutely free under the First Amendment–in fact, even more free than other forms of speech.

In matters that have recently featured on this blog, his views on blasphemy (discussed here) and treaspassory art (discussed here) will resonate with our recent blasphemy and Cowengate controversies.

Mark Tushnet has written an excellent discussion of Bezanson’s book. Posing the question “Why exactly are Jackson Pollock’s paintings protected by the First Amendment?”, he argues that

People should check their wallets whenever the Supreme Court takes some proposition as unquestionable. Randall Bezanson shows why. Every route that you might take to explain why non-representational art is covered by the First Amendment leads to mind-bending problems, and rather rapidly places some other unquestionable proposition about free speech under pretty severe pressure. …

This isn’t to say that Bezanson’s proposed solution to the problems posed for the First Amendment by non-representational art is satisfactory. He says that art should be absolutely protected against government sanction, even more so than propositional speech. … Bezanson sometimes seems to think that his absolute rule is tolerable because he would apply it only to serious art. … Early on, Andy Warhol’s work wasn’t “serious” enough. Now it’s central to the study of mid-twentieth century art, full stop. Rules that purport to make important differences turn on a distinction between serious art and unserious “art” are unlikely to succeed.

It’s worth reading Tushnet’s review in full, and then it’s worth reading Bezanson’s book too. It demonstrates that the most profound questions about freedom of expression are often raised not in the context of the participatory political process but in the contested field of human emotions. The problems outlined in the book are universal; the analysis may be centred on the First Amendment; but it will surely provide a sure guide if and when the issues come up in other courts on foot of other free speech guarantees.

If you like this post, please click on this link to pass it on. Thanks!

Hide Sites

Yesterday’s Irish Times reminds me of an interesting High Court judgment handed down early in the Summer. It’s called Dennehy v Independent Star Ltd trading as The Irish Daily Star Newspaper [2009] IEHC 458 (28 May 2009) and it concerns an attempt to bring a prosecution for criminal libel. Section 8 of the Defamation Act, 1961 (also here) provides

No criminal prosecution shall be commenced against any proprietor, publisher, editor or any person responsible for the publication of a newspaper for any libel published therein without the order of a Judge of the High Court sitting in camera being first had and obtained, and every application for such order shall be made on notice to the person accused, who shall have an opportunity of being heard against the application.

When the Defamation Act, 2009 (pdf) comes into effect in the new year, section 4 will repeal the 1961 Act and section 35 will abolish the common law crime of criminal or defamatory libel (the UK is soon to follow this lead). So, the Dennehy is likely to be last Irish case concerning this ancient crime. But the case also looks to the future, as one of the arguments made on behalf of the applicants was founded upon the European Convention of Human Rights, and the reasons why that argument failed are quite striking. Read the rest of this entry »

If you like this post, please click on this link to pass it on. Thanks!

Hide Sites