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Daniel O’Connell and Free Speech: “speaking bold truths boldly and firmly”

A fascinating post on Daniel O’Connell and free speech was published on the excellent Irish Philosophy website last Monday, in honour of Daniel O’Connell‘s birth on 6 August 1775, near Cahirciveen, Co. Kerry; here’s an extract (emphasis added):

Given his political philosophy, it is not surprising that Daniel O’Connell was a champion of free speech. … [At] the Monster Meetings of the 1840s, … huge crowds gathered to hear O’Connell speak. … Though the meetings were orderly, the government grew worried trouble would break out. Sir Robert Peel outlawed the next Monster Meeting, planned for Clontarf on 8 October 1843. Though O’Connell called off the rally, he was still arrested and charged with conspiracy.

O’Connell spoke in his own defense, pointing out the “conspiracy” was neither secret nor criminal, arguing that calling such a movement as his a conspiracy would prevent improvement of any institutions …

Do not attempt to take away from your fellow subjects the legitimate mode of effecting useful purposes by public meetings, public canvassing — speaking bold truths boldly and firmly.

O’Connell was found guilty … The verdict was appealed to the House of Lords, reversed, and O’Connell left prison after three months, a hero in the fight for freedom of speech.

On the trial, see Report of the Irish State Trials, 1844 (Google Books).

On the appeal, see O’Connell v R (1844) 11 Cl & Fin 155, (1844) 8 ER 1061, [1844] EngR 880 (9 September 1844) (pdf); and see also the House of Lords Frees Daniel O’Connell on Myles Dungan’s blog.

On O’Connell generally, see Patrick Geoghegan King Dan: The rise of Daniel O’Connell, 1775-1829 (Gill and Macmillan, Dublin, 2008 | Amazon) and Liberator: The life and death of Daniel O’Connell, 1830-1847 (Gill and Macmillan, Dublin, 2010 | Amazon).

Implications of Brexit, North and South

The Irish Council for Civil Liberties (ICCL) seminar on the Constitutional and Human Rights Implications of BREXIT, North and South this evening at 5:00pm in the Distillery Building, Church Street, Dublin 7 (map via here). It’s something I’ve blogged about here, here, here and here. Since then, the UK Supreme Court has handed down its judgment in R (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 (24 January 2017). I wrote an OpEd on the case in the Irish Times the following day. Read more

Oh no, not again – another heckler’s veto in Trinity

The following headlines have caught my eye:

After Protest, Society for International Affairs Cancel Event with Israeli Ambassador (from the University Times)

and

Trinity College Dublin event involving Israeli ambassador cancelled (from the Irish Times)

Update (21 Feb 2017): Planned talk by Israeli Ambassador at Trinity College is cancelled after protests (from theJournal.ie)

I don’t have time to write a considered post about this right now, but I could not let it pass unremarked, so I will content myself for the time being with noting: oh no, not again.

Update (23 Feb 2017): The protest and cancellation garnered headlines in Israel (Algemeiner | Jerusalem Post | Jewish Press | Times of Israel here and here) and further afield (Yahoo! news – even Breibart, with typical hyperbolic misrepresentation)

The University Times updated their piece and headline: After Event with Israeli Ambassador Cancelled, Trinity Criticises “Unacceptable Attack on Free Speech”; the Irish Times ran a follow up: Trinity condemns ‘unacceptable attack’ on free speech; and the Hearld also ran a story: Anti-Israel protest is ‘antithesis of what Trinity stands for’. These pieces refer to a statement from the Provost:

Trinity College Dublin regrets attack on free speech

Dublin, Tuesday February 21st 2017 – Trinity College Dublin regrets that Israel’s ambassador to Ireland, HE Ze’ev Boker, was unable to take part in a question and answer session on Monday evening after protesters from inside and outside the university threatened to disrupt the event. The university regards what happened as an unacceptable attack on free speech.

Ambassador Boker had been due to address a student society on Monday but the event was cancelled before he arrived at the proposed venue amid security concerns. University officials had unsuccessfully tried to get the protesters to leave an area surrounding the door to a lecture theatre. The ambassador has been a regular and welcome visitor to Trinity since his appointment. He had dinner in the university earlier in the same evening and attended another event in Trinity last week.

Trinity’s Provost Patrick Prendergast criticised the protesters for preventing a guest from expressing his opinions. “This was most unfortunate and represents the antithesis of what Trinity stands for. Universities should be able to facilitate the exchange of ideas. The protesters have violated that fundamental belief. Trinity will remain a home for debate and we will do everything possible to make sure that efforts to suppress the free exchange of ideas do not succeed. I look forward to welcoming Ambassador Boker back to Trinity to speak again in the near future.

Hear! Hear!

Update (6 April 2017): from Trinity News:

Students for Justice in Palestine fined for protest at Israeli ambassador talk

College has also refused to accept a petition on behalf of the group

Students for Justice in Palestine (SJP) have been fined €150 following their protest of a talk, organised by the Society for International Affairs (SoFIA), given by the Israeli ambassador to Ireland. …

Free Speech University Rankings

I have written on this blog in the past about university free speech rankings in the UK and the US. The online current affairs magazine, spiked, has published its third annual Free Speech University Rankings (FSUR) of the UK’s universities (THE | The Tab | The Times here and here):

… it paints a grim picture. Our survey, ranking 115 UK universities using our traffic-light system, shows that 63.5 per cent of universities now actively censor speech, and 30.5 per cent stifle speech through excessive regulation. This marks a steady rise in censorship over the past three years. Now only six per cent of UK universities are truly free, open places.

Tom Slate, Deputy Editor of spiked, and co-ordinator of the survey, comments:

For anyone who’s been anywhere near a campus recently, this will come as no surprise. Students’ unions no longer just No Platform the odd edgy speaker – they ban ‘tarts and vicars’ parties and ‘offensive hand gestures’. But what’s perhaps most striking in this year’s findings is how fast universities are catching up. Though SUs are still far more censorious than universities, 23.5 per cent of university administrations are now ranked Red, compared with 15 per cent just last year.

The Foundation for Individual Rights in Education (FIRE) maintain an equivalent survey of US universities; and the Institute of Public ­Affairs do the same in Australia. These assessments are not the only sources of such dispiriting information. Direct surveys of students on campus in the US (pdf) and the UK (pdf) found that, while students support free speech in principle, many are willing to entertain significant restrictions. In any event, and whatever about Trinity’s return to the Times Higher Education‘s World University Rankings, in my view a green light on these free speech rankings would be a university ranking worthy of the name. If any benefactor out there wants to support similar research for higher education institutions in Ireland, I would be happy to co-ordinate it. Roll up; roll up!

Litigating against Mass Surveillance in the US

There will be a public lecture by Ashley Gorski on

Litigating against Mass Surveillance in the US – The National Security Project at the American Civil Liberties Union

in the Swift Lecture Theatre, Room 2041A Arts Block, Trinity College Dublin (map here), next Friday 10 February 2017 from 6:00pm to 7:00pm. All are welcome to attend, and booking is not required.

The American Civil Liberties Union (ACLU) was founded in 1920 to defend and preserve the individual rights and liberties guaranteed by the Constitution and laws of the United States. Whether it’s achieving full equality for LGBT people, establishing new privacy protections for our digital age of widespread government surveillance, ending mass incarceration, or preserving the right to vote or the right to have an abortion, the ACLU takes up the toughest civil liberties cases and issues to defend all people from government abuse and overreach.

The ACLU National Security Project advocates for national security policies that are consistent with the Constitution, the rule of law, and fundamental human rights. The project litigates cases relating to detention, torture, discrimination, surveillance, censorship, and secrecy. Originally created as an informal working group after the September 2001 attacks, the National Security Project is now at the forefront of virtually every major legal battle relating to national security, civil liberties, and human rights.

Ashley Gorski (pictured, left) is a staff attorney at the National Security Project, where she works on issues related to post-9/11 racial and religious discrimination, torture, detention, and religious freedom. She is a graduate of Yale College and Harvard Law School. Prior to joining the ACLU, she worked at a New York law firm and served as a law clerk to the Hon Jon O. Newman, United States circuit judge for the Second Circuit Court of Appeals, and to the Hon Miriam Goldman Cedarbaum, United States district judge for the Southern District of New York. She is in Dublin to give evidence, about Mass Surveillance in the US, in the case currently before the High Court between the Data Protection Commissioner and Facebook, about current rules by which data is shared between the EU to the US.

You can’t keep the proceeds of a bank error in your favour; and, if you do, you probably won’t be able to get out of jail free – updated

In the board-game Monopoly, one of the cards that you can get by landing on ‘Chance’ is ‘Get out of jail free‘. If you are sent to jail during the game, you can use the card to ‘escape’ immediately, without having to cool your heels for the three turns otherwise mandated by the rules. It is as about a useful guide for life as the its fellow Monopoly ‘Community Chest’ card, which tells you that you can keep the proceeds of a bank error in your favour. Unfortunately, you can’t; and spending it is straightforward theft, as is well illustrated by a story in today’s Irish Independent:

Jail for ‘flabbergasted’ teen who succumbed to temptation after €20k was mistakenly lodged in his account

Karl Smith was due €200

A teenager who had “an incredible temptation presented to him” two days after his 19th birthday when his former employer mistakenly lodged almost €20,000 into account has been jailed for theft. …

Judge Melanie Greally sentenced Smith to four years in prison with the final two years suspended.

There is more on this case here, here, here and here. This is not the only time this kind of thing has happened, though it certainly seems to be the most unlucky defendant. Read more

Reform of the law of defamation – the defence of fair and reasonable publication

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 [2016] 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. ([2016] IECA 327 (09 November 2016) [10])

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 ([2015] 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. ([2016] IECA 327 (09 November 2016) [18] (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 [2016] 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.

Read more

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:

In unique deal, Elsevier agrees to make some papers by Dutch authors free

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:

No full-text access to Elsevier journals to be expected from 1 January 2017

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.