Section 26 of the Defamation Act 2009 (also here) introduced a new defence of fair and reasonable publication into Irish defamation law. In Meegan v Times Newspapers Ltd  IECA 327 (09 November 2016) Hogan J for the Court of Appeal (Finlay Geoghegan and Peart JJ concurring) explained that the
section is clearly designed to provide a defence for publishers who show that they acted bona fide and that the publication was fair and reasonable having regard, in particular, to the matters set out in section 26(2) of the 2009 Act. Section 26 may be regarded as an endeavour by the Oireachtas to move away in some respects from the strict liability nature of the common law tort of libel and to introduce – in, admittedly, some specific and limited respects – a negligence based standard in actions for defamation under the 2009 Act. ( IECA 327 (09 November 2016) )
For all that section 26 is a centre-piece of the reforms worked by the 2009 Act, it is, in my view, a legislative dead letter. It is over-complex, placing far too many hurdles in the way of a successful invocation. Meegan illustrates the point. The plaintiff garda claimed that she had been defamed by the defendant’s allegations that she had supplied sensitive information to a paramilitary group. The defendant pleaded the defence of fair and reasonable publication; and the High Court ordered discovery of the journalist’s notes and other background material relevant to article ( IEHC 696 (06 November 2015)). The Court of Appeal reversed, on the grounds that it was
premature to assess whether the discovery sought is genuinely necessary for the proper conduct of this litigation, at least until the scope and extent of the section 26 defence is clarified and particulars of the facts proposed to be relied upon by the defendant in support of that defence are duly ascertained, whether by further pleading or by particulars. ( IECA 327 (09 November 2016)  (Hogan J) (emphasis added)).
Although from the context, it is clear that Hogan J meant that the scope and extent of the section 26 defence that needed to clarified were the scope and extent of the defence as pleaded on the facts, such that clarification could be forthcoming following delivery of particulars, in my view the lack of clarity as to the scope and extent of the defence must have been contributed to in no small part by the complexity and opacity of the terms of section 26 itself. A simpler, clear, statutory statement of the defence would have made for less ambiguity in what the defendant was relying upon and what the plaintiff could seek by way of discovery. There are so many hurdles in section 26 that it was not clear what the defendant was relying on. This raises very serious questions about the workability of the defence.
By way of contrast, in England and Wales, section 4 of the Defamation Act 2013 introduced a similar defence of publication on matter of public interest; it is in much simpler terms; and it was successfully invoked for the first time in Economou v de Freitas  EWHC 1853 (QB) (27 July 2016). In this post, I want to discuss that case, and to present that defence as a template for the reform of the defence of fair and reasonable publication in the 2009 Act.
The IUA (and THEA) should follow the lead of their Dutch and German counterparts in their negotiations with large publishers
A little while ago, I argued on this blog that Irish competition and copyright law should be amended to enable open access to universities’ research. In particular, the Irish Universities Association (the IUA), the representative body of the universities which employ academics whose research is published by the large publishers should negotiate the terms on which their employees will transfer copyright in their research and content to the publishers. They could this, either on their own, or jointly with the Technological Higher Education Association (the THEA), the representative body for Institutes of Technology in Ireland. This co-ordination and collaboration could improve the terms offered by publishers both to individual academics when submitting their research for publication, and to institutions for subscriptions to research resources – and it could in particular pave the way to ensuring greater open access to research. Because such co-operation could amount to an anti-competitive agreement, decision or concerted practice in breach of section 4 of the Competition Act, 2002, I suggested in that post an amendment to that section. I now learn that similar joint-action has been taken in the Netherlands and Germany, and without such legislative cover.
The deal between the Association of Universities in the Netherlands and Elsevier (joint press release) was concluded at the end of November:
A standoff between Dutch universities and publishing giant Elsevier is finally over. After more than a year of negotiations—and a threat to boycott Elsevier’s 2500 journals—a deal has been struck: For no additional charge beyond subscription fees, 30% of research published by Dutch researchers in Elsevier journals will be open access by 2018.
“It’s not the 100% that I hoped for,” says Gerard Meijer, the president of Radboud University in Nijmegen, the Netherlands, and the lead negotiator on the Dutch side. “But this is the future. No one can stop this anymore.” …
The German action, taken by the Alliance of German Science Organisations, represented by the German Rectors’ Conference, is similar:
From 1 January 2017 on, Göttingen University — as well as more than 60 other major German research institutions — is to be expected to have no access to the full texts of journals by the publisher Elsevier. …
The DEAL project, headed by HRK (German Rectors’ Conference) President Prof Hippler, is negotiating a nationwide license agreement for the entire electronic Elsevier journal portfolio with Elsevier. Its objective is to significantly improve the status quo regarding the provision of and access to content (Open Access) as well as pricing. It aims at relieving the institutions’ acquisition budgets and at improving access to scientific literature in a broad and sustainable way. …
Given that the Netherlands and Germany have competition laws similar to section 4, I find it interesting that the publishers came to an agreement in the former and are continuing to negotiate in the latter, in both cases without recourse to the powerful Dutch or German competition authorities. I hope that the Germans are as successful as the Dutch were, and that the IUA (perhaps jointly with the THEA) will soon follow suit.
The Tánaiste and Minister for Justice and Equality is conducting a review of the operation of the Defamation Act 2009 (also here). No doubt the focus of media submissions will be the level of damages, and exhibit A in those submissions will unquestionably be the decision of the Supreme Court in Leech v Independent Newspapers  IESC 79 (19 December 2014). A report published today by the International Press Institute provides an excellent statement of the argument. In this post, I want to summarize and respond to some of the issues in the Report, and make three practical suggestions for reform of the law of defamation relating to damages.
I have an OpEd in today’s Irish Times about the decision just before Christmas of the Supreme Court in Collins v Minister for Finance  IESC 73 (16 December 2016). In holding against the challenge by Joan Collins TD to the constitutionality of the 2008 legislation under which the Minister for Finance issued more than €30 billion worth of promissory notes to the Irish Bank Resolution Corporation and the Educational Business Society (EBS), the Supreme Court provided the Government with what was, no doubt, a very welcome Christmas present.
In the OpEd, I make two points about the decision. First, the Court described the separate roles of the Government and the Oireachtas relating to approving the expenditure of public finances as locks, and held that, if the Oireachtas cannot or will not turn its key in its lock, the government cannot ignore or avoid the Oireachtas, or seek to pick the latter’s lock. Second, on the facts, the Court held that the Government, in enacting and implementing the Credit Institutions (Financial Support) Act 2008 (also here), did not pick any lock on public expenditure for which the Oireachtas had the key. However, this emphasis on the Oireachtas’s lock has the capacity to constrain Government in the future, and the Christmas present in the Collins judgment would not then be quite so welcome to Government after all.
It’s not everyday that the prospect of an action in the Irish High Court makes worldwide headlines. But a case about the mechanism by which a member state can depart from the European Union is doing just that.
The background lies in last June’s referendum in the United Kingdom, in which the majority voted leave the EU. As a matter of European law, the departure process is provided in Article 50 of the Treaty on European Union. The UK Prime Minister, Theresa May, has stated repeatedly that she wants to begin this process before the end of March next year, and the House of Commons on Wednesday voted to approve this timetable.
The Article 50 process is a recent enough creation. It was inserted into the Treaty by the Treaty of Lisbon in 2007, and it came into force in 2009. It provides that a departing state must notify the European Council of its intention to leave; and it gives the EU and the departing state two years to negotiate the departure arrangements. But the departure of a state from the EU hasn’t happened before; so we are in uncharted waters, both politically and legally; and ambiguities in the text of Article 50 don’t help.
It is not clear, for example, what form the notice to the European Council must take. Neither is it clear whether the two year process can be suspended, or whether a state which has started the process can change its mind and stop the withdrawal process. Nor is it clear what impact withdrawal from the EU would have on the withdrawing state’s relationships with other European bodies, such as the European Economic Area (the EEA). Where a matter of EU law is unclear, the Court of Justice of the European Union (the CJEU) in Luxembourg is the only authoritative source of a binding answer. And Article 267 of the Treaty on the Functioning of the European Union provides a mechanism by which a national court dealing an issue of EU law can seek a preliminary ruling from the CJEU. So, any party to a case raising an unclear issue of EU law, such as Article 50, can ask the court to refer that issue to the CJEU.
The plaintiffs seeking a reference from the High Court to the CJEU about the meaning of Article 50 are likely to be Members of the European Parliament for various UK constituencies [a draft statement of claim is here (pdf)], possibly including some from Northern Ireland. It’s constitutional litigation, but really the continuation of politics by other means. Nevertheless, the sight of politicians making constitutional arguments about political grievances is not an unusual one in Irish courts.
The Tánaiste and Minister for Justice has today published the Scheme of Judicial Appointments Commission Bill 2016 (press release | Scheme (pdf)) to deliver on the commitments in the Programme for a Partnership Government to reform the system for judicial appointments. The Scheme provides for a new Commission for Judicial Appointments, including a lay chair and a lay majority. The lay members of the Commission will be selected by the Public Appointments Service, which will also select the Chairperson. The Commission will make recommendations to the Government for appointment to judicial office, and a sub-committee of the Commission will prepare codes of practice dealing with selection processes.
This is a thoroughly welcome development, which I will analyse in detail on this blog at a later date. For now, in this post, I want to focus on two innovations, relating to guiding principles to apply in the judicial selection process, and to the eligibility of academics. Read more
It is a rare provision of a Treaty, or a constitution, or an Act, that achieves fame or notoriety simply by means of its number. The First Amendment is so famous the world over that we do not need to be told that it is a clause in the Bill of Rights to the US Constitution. Section 31 was once just as notorious in Ireland. Rapidly joining this pantheon is Article 50. It is an Article of the Treaty on European Union, inserted by the Treaty of Lisbon, to provide a mechanism by which a Member State may withdraw from the EU. It has been plucked from the obscurity of an EU Treaty and thrust into the glare of worldwide headlines by the UK referendum on 23 June 2016 in which the majority of participants voted to leave the EU.
The interpretation of Article 50 has provoked much political and legal discussion, but little consensus. Indeed, I have commented twice on this blog (here and here) on the question whether a notice served by the UK under that Article may be suspended or withdrawn. Only the Court of Justice of the European Union (CJEU) can answer that question authoritatively. Writing in today’s Irish Times, Jolyon Maugham QC of Devereux Chambers, London, makes an intriguing suggestion as to how the CJEU might come to provide that answer:
A legal decision that article 50 is revocable would allow for change of mind about leaving
… In a wide ranging interview with London’s Financial Times, Koen Lenaerts [President of the CJEU] observed there are “many, many different ways” that Brexit could end up before him. … if the UK courts will not refer the revocability of article 50 to the European Court, might the Irish courts? They could and they should.
[links and emphasis added]
Apart from the political and practical concerns with this suggestion, there are at least two big legal questions here – Maugham’s “could”, and Maugham’s “should”. As to “could”, how could the Irish courts come to make a reference to the CJEU on the issue of the revocability of Article 50? What is the nature of the case that poses the question? What are the facts that compel the High Court in Dublin to make the reference? Who are the parties (plaintiff(s) and defendant(s))? What is the plaintiff’s cause of action? What remedies does the plaintiff seek? One of the many lessons of Re McCord  NIQB 85 (28 October 2016) and R (Miller and dos Santos) v Secretary of State for Exiting the European Union (Rev 1)  EWHC 2768 (Admin) (03 November 2016) is: cometh the hour, cometh the cases. I can see the outlines of at least four possible cases; doubtless there are others; [update: a potential fifth, which is already before the courts, was drawn to my attention on twitter here and here]; indeed, if a case in the High Court does end up making a reference to the CJEU, I would not be at all surprised if it were to be founded upon an entirely different set of facts. Read more
There will be a public lecture by Professor Philippe Sands QC on
East West Street: A Personal Take on the Origins of Genocide & Crimes against Humanity
on Wednesday, 30 November 2016, at 7:30pm, in the Edmund Burke Lecture Theatre, Room 1008 Arts Building (map here), Trinity College, Dublin. All are welcome to attend.
Professor Philippe Sands QC is Professor of Law and Director of the Centre on International Courts and Tribunals at University College London, and a practising barrister at Matrix Chambers, London, specialising in international law.
His book East West Street: On the Origins of Genocide and Crimes against Humanity (Weidenfeld & Nicolson, 2016 | Amazon) won the 2016 Baillie Gifford Prize for non-fiction. Robert Gerwath, reviewing it in the Irish Times, said that it was “a rare book” that “adds genuinely new insights into the war or its legacies”, and “succeeds in bringing the subject to life even for those not primarily interested in the evolution of legal concepts”. Sands has been involved in a number of high profile law cases and has published extensively. He contributes frequently to The Guardian, Financial Times, London Review of Books and Vanity Fair. His book East West Street formed the basis of the documentary film My Nazi Legacy: What our Fathers Did (2015 | imdb).
This lecture is part of the Sydney Gruson lecture series organised by the Herzog Centre in the Department of Near and Middle Eastern Studies, Trinity College Dublin, and the Holocaust Education Trust Ireland.