cearta.ie – Page 2 – the Irish for rights

Political expression, autonomous communication, and anti-social behaviour orders: a note on Tallon v DPP [2022] IEHC 322 (31 May 2022)

7 July, 202211 July, 2022

| Freedom of Expression, Freedom of Expression, Irish cases

1. Introduction

The decision of Phelan J in Tallon v Director of Public Prosecutions [2022] IEHC 322 (31 May 2022) is a recent and important judgment on the scope of the free speech rights protected by Article 40.6.1(i) and Article 40.3.1 of the Constitution. It concerns the extent to which an anti-social behaviour order imposed pursuant to section 115(1) of the the Criminal Justice Act, 2006 (also here) can permissibly restrain constitutional free speech rights.

2. Free speech rights in the Irish Constitution

2.1 The freedom of political expression
The right “to express freely … convictions and opinions” contained in Article 40.6.1(i) of the Constitution is now understood, broadly speaking, as a freedom of political expression, concerned with the public activities of citizens in a democratic society (see Murphy v Irish Radio and Television Commission [1999] 1 IR 12, 24, [1998] 2 ILRM 360, 372, (28 May 1998) [37]-[44] (doc | pdf) (Barrington J; Hamilton CJ, O’Flaherty, Denham, and Keane JJ concurring) building on Irish Times v Ireland [1998] 1 IR 359, [1998] 2 ILRM 161 (2 April 1998) (doc | pdf) (Barrington J)). And, in Dunnes Stores v Ryan [2002] IEHC 61 (5 June 2002), Kearns J in the High Court struck down section 19(6) of the Companies Act, 1990 (also here), which required a company to provide an explanation or make a statement to an officer making inquiries about the company, on the grounds, inter alia, that it infringed the right to silence implied into Article 40.6.1(i) (a right now being relocated to Article 38.1 of the Constitution insofar as it relates to the fairness of the trial process; see Director of Public Prosecutions v M [2018] 1 IR 810, [2018] IESC 21 (21 March 2018) [37] O’Malley J (Clarke CJ and O’Donnell, Dunne and Charleton JJ concurring); Sweeney v Ireland [2019] IESC 39 (28 May 2019) [76] (Charleton J; O’Donnell, MacMenamin, Dunne and Finlay Geoghegan JJ concurring); Director of Public Prosecutions v Carroll [2021] IECA 261 (13 October 2021) [17] (Donnelly J; Edwards and McCarthy JJ concurring)).…

On the Internet, does Article 17 know you’re a dog?

5 July, 20226 July, 2022

| 3 Comments

| Copyright

4 cartoons:

On this day in 1993, the New Yorker magazine published a cartoon by Peter Steiner. A large dark dog sits at a desk in front of a computer; a smaller white dog sits on the floor beside him; the large dog says to the small one “On the Internet, nobody knows you’re a dog”.

On 14 November 2010, the Joy of Tech blog published a cartoon by Nitrozac and Snaggy. It’s very similar to Steiner’s; but, this time, the large dog is saying to the small one “It used to be that on the Internet, nobody knew you were a dog. Now, on a social network, everybody knows you’re a bitch“.

On 12 June 2013, the Joy of Tech blog published another cartoon by Nitrozac and Snaggy. It has two panels. The left panel, headed “In the 1990’s”, is a colourized version of Steiner’s original. The right panel, headed “Now”, shows two NSA agents in a control room. One says “Our metadata analysis indicates that he is definitely a brown lab”. The other says “He lives with a white and black spotted beagle-mix, and I suspect they are humping”.

On 23 February 2015, the New Yorker published a cartoon by Kaamran Hafeez.…

The nutty wing of the Originalist camp is now in the SCOTUS ascendency – is it the death knell for tiers of scrutiny, especially in the First Amendment context?

26 June, 202227 June, 2022

| No Comments

| 1A, US Supreme Court

“I’m an originalist, but I’m not a nut”. This is how the Pontiff of Originalism, Justice Antonin Scalia (seated right), reportedly replied, when he was asked to compare his judicial philosophy to that of his US Supreme Court colleague, Justice Clarence Thomas (seated left). As of Thursday, Thomas J’s nutty originalism is in the ascendancy in the US Supreme Court. In New York State Rifle and Pistol Association v Bruen (23 June 2022; — US — (2022); Opinion pdf | Cornell htmi), the US Supreme Court held that a New York restriction on carrying firearms unconstitutionally prevented law abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense. Referring to District of Columbia v Heller 554 US 570 (2008) (pdf) (which I critiqued here) and McDonald v Chicago 561 US 742 (2010) (pdf), the Court held that, to justify a firearms regulation, the government must demonstrate that the regulation is consistent with the Nation’s historical tradition of firearms regulation; as a consequence, the Court rejected any standard of review such as strict or intermediate scrutiny (which it described as “means-end” balancing tests). The Court identified firearms regulations that were consistent with the Second Amendment’s text and historical understanding, but held that none directly or analogically justified New York’s requirement that an applicant for a license to carry firearms outside the home had to demonstrate “a special need for self-protection distinguishable from that of the general community”.…

Supermarket website mistakenly lists premium whisky for £2.50 – do their inconsistent terms and conditions apply?

17 June, 202217 June, 2022

| No Comments

| Mistaken offers

From today’s Guardian:

Morrisons mistakenly lists £2.50 whisky

The retailer identified the pricing error on its website before any bottles were sold

Mark Twain reputedly said: “Too much of anything is bad, but too much good whisky is barely enough.”

Online shoppers at the supermarket Morrisons came close to testing his theory when the retailer accidentally priced bottles of a Scotch whisky at just £2.50, a 93% discount from its usual price of £36. …

Whisky lovers piled in, posting their delight on social media, only to discover their big orders had been thwarted at the last minute.

The pricing error was identified by Morrisons, and due to minimum unit pricing legislation making the charge per bottle illegal, the retailer cancelled all orders before they were actioned. …

Glenlivet Caribbean Reserve on Morrisons As the image (left) from Morrisons’ current website implies, someone must have mistakenly entered £2.50 instead of the intended £25.00. But Morrisons were able to play the get-out-of-jail-free card of Scotland’s minimum unit pricing legislation (in force since 2018) prevented the offer from taking effect. Ireland has similar legislation (in force since the beginning of this year). However, if they could not have played that card, would they have been bound to sell the whisky for £2.50?…

The Aeolus Episode in Ulysses and the Freeman’s Journal: Chief Baron Palles and the law of defamation

16 June, 202226 July, 2022

| 1 Comment

| Christopher Palles, Defamation, Defamation, James Joyce

Bloomsday 2022 is a good day to note the imminent publication the following (from the introduction and conclusion; footnotes mostly omitted):

The Aeolus Episode in Ulysses and the Freeman’s Journal: Chief Baron Palles and the law of defamation

Christopher Palles is one of the many real Dubliners in Joyce’s Ulysses. The title refers to the Roman name of a Greek hero, Odysseus; and the novel roughly corresponds to various episodes in Homer’s Odyssey, telling the story of Dublin through the wanderings of Leopold Bloom (Homer’s Odysseus) on 16 June 1904. In the Odyssey, Aeolus, the warden of the winds, seeks to help Odysseus. In the Aeolus episode in Ulysses, Bloom visits his workplace, the Freeman’s Journal, and almost crosses paths with Stephen Dedalus (Homer’s Telemachus, the other great protagonist in Ulysses).

In the Aeolus episode, many of the novel’s characters discuss the issues of the day in the Journal’s offices. J.J. O’Molloy (a once-promising lawyer now fallen on hard times) interrupts Professor MacHugh’s discourse on the grandeur that was Rome, to ask ‘Do you know that story about chief baron Palles? … It was at the royal university dinner. Everything was going swimmingly …’.

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Garda use of facial recognition technologies unnecessary and disproportionate. It may have significant chilling effects, altering how people use public and online spaces

2 June, 20222 June, 2022

| No Comments

| Facial Recognition

I am a signatory to a letter in today’s Irish Times, under the above heading. Here is a lightly-linked version, via the UCD Centre for Digital Policy (and also https://www.irishlegal.com/articles/opinion-helen-mcentee-must-place-a-full-moratorium-on-policing-facial-recognition-technologies):

Open Letter to the Irish Times: Experts’ Red Line on Policing Facial Recognition Technologies

Sir. – The Minister for Justice plans to expand the gardaí’s surveillance powers with policing facial recognition technologies (FRT). While some believe that using FRT may help make us safer, the undersigned experts from 7 universities and 13 NGOs in Ireland know the risks are too significant.

Policing FRT is used as a form of mass surveillance that will enable the identification and tracking of individuals without warranted suspicion. It has the ability to scan large amounts of publicly captured visual data so it can draw powerful inferences about people, the vast majority of whom would be of no interest whatsoever to the gardaí. While public safety and national security can sometimes supersede privacy rights, the intrusions of policing FRT surveillance are wholly unnecessary and disproportionate. There is a danger that the use of FRT will have significant chilling effects, altering how people use public and online spaces.

Even though this technology is available for policing, it does not mean we should use or trust it.

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Mistaken payments and criminal liability – a cautionary tale from South Africa

4 April, 202216 September, 2022

| 1 Comment

| Mistaken payments, Restitution, Restitution

I have warned many times on this blog (especially here, here, here, here, here, here, here, and here – with examples from Ireland, the UK, Australia, New Zealand, and the US) that the recipient of a mistaken payment not only has a duty to make restitution of that unjust enrichment but also faces potential criminal liability for theft if the payment is kept (and, worse, spent) rather than returned. A recent cause célèbre from South Africa provides another cautionary tale:

Sibongile Mani sentenced to 5 years’ imprisonment for theft of NSFAS funds

Walter Sisulu University (WSU) student Sibongile Mani [left] has been sentenced to five years’ imprisonment for theft relating to R14 million [€870,000] accidentally credited to her account by the National Student Financial Aid Scheme (NSFAS) in 2017.

East London Regional Court Magistrate Twanette Olivier found Mani guilty of stealing R818,000 [€51,000] of the funds.

She was only entitled to a R1,400 [€87] food allowance and was accused of failing to report when R14 million [€870,000] was credited to her account erroneously. She instead embarked on a spending spree. …

A little more background:

Key events that led up to the sentencing and appeal of NSFAS ‘millionaire’ Sibongile Mani

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June 2017
A technical glitch led to funding administrative company Intellimali erroneously transferring R14m into Mani’s account.

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