cearta.ie

I have a short op-ed in today’s Irish Independent, on the topic of contempt of court by social media, pointing out that there’s a fine line between commenting on and prejudicing a trial (registration required).

Here’s a rather longer version, with a few relevant links:

The law on contempt applies equally to all media, offline and online

Social media coverage of criminal trials raises profound constitutional issues, and may hasten legislation on contempt of court

Justice shall be administered in public, according to Article 34.1 of the Constitution. The full glare of a public hearing enables everyone to know that justice is being administered fairly, and impartially, and according to the evidence. It allows the press and the public to report on, to scrutinise, and to comment upon, the workings of the law.

Every person facing a criminal charge is entitled to a fair trial, according to Article 38 of the Constitution. So commentary that gives rise to a substantial risk either of serious prejudice to, or of prejudgment of, an active trial, can amount to contempt of court. This can be dealt with either by the judge during the trial itself (by charging the jury to ignore the comments, or penalising the commentator, or – in rare and extreme cases – stopping the trial, or some combination of these), or by a case taken by the Director of Public Prosecutions against the commentator after the trial.

There can be a fine line between reporting and commenting on an active trial, and prejudicing or prejudging it. (more…)

Two weeks ago today I was chatting over coffee with a data protection expert during the second day of the Data Summit 2017. He was annoyed at my blogpost on the Government’s General Scheme of the Data Protection Bill 2017 [the Scheme] to give further effect in Irish law to the EU’s General Data Protection Regulation [the GDPR]. Article 82(1) GDPR provides claim for compensation for anyone whose rights under the GDPR are infringed. In the post that annoyed him so much, I said that I couldn’t find a Head to this effect in the Government’s Scheme. He said: what about Head 91? I said: that’s where it should be, but it isn’t there. He wasn’t convinced. So, I went back and had a closer look at the Scheme and the GDPR. I also had a look at an associated Directive (the Police and Criminal Justice Authorities Directive [the PCJAD]) which is also being transposed by the Scheme. Article 56 PCJAD similarly provides for a claim for compensation for anyone whose rights under the PCJAD are infringed. Heads 91 and 58 (respectively) of the Scheme address these claims, but they do not completely provide for such claims for compensation. So, I’m still of the view that the Scheme does not provide a claim for compensation for breach of the GDPR and the Scheme. It seems to assume one, to be sure; but it never goes so far as expressly to provide one.

Article 79 GDPR provides for a right to an effective judicial remedy against a controller or processor; and Article 82 GDPR provides for a claim for compensation as part of that effective judicial remedy. Head 91 of the Scheme seems to be directed towards these Articles. Head 91(1) provides what it describes as “a data protection action” to data subjects whose rights under the GDPR or its translating legislation are infringed. Head 91(2) provides jurisdiction to the Circuit Court, concurrently with the High Court, to hear such actions. Head 91(3) provides:

In a data protection action under this Head, the Circuit Court shall, without prejudice to its powers to award compensation in respect of material or non-material damage, have the power to grant relief by means of injunction or declaratory orders.

And Head 91(4)(b) requires a plaintiff in a data protection action to specify, inter alia, “any material or non-material damage alleged to have been occasioned by the infringement”.

The reference in Head 91(3) to the provision of other remedies “without prejudice to [the Circuit Court’s] … powers to award compensation” assumes that the Court has such powers. And the reference in Head 91(4)(b) to “any material or non-material damage” further assumes that that the powers to award compensation cover both material and non-material damage. However, Head 91 does not expressly afford a claim compensation for material or non-material damage; nor is it expressly afforded elsewhere in the Scheme. It may be that this Head is predicated on the assumption that Article 82(1) GDPR is directly horizontally effective and thereby provides those “powers to award compensation”.

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When I was in school, I learned a song in Irish called Báidin Fheilimí. It’s about Phelim’s boat, sailing to islands off Donegal, in the north-west of Ireland. In the first verse, it sails to Gola Island; in the second, it sails to Tory Island; and, in the third, the lively little boat is wrecked on the rocks off Tory. The song left a romantic image of Tory in my mind. Neville Presho probably had a similar image; but, like Phelim’s boat, it has been wrecked on Tory rocks. He had a holiday home on the island. Until, one day, he returned to the island, and found that the house was gone, replaced by car park for an adjacent hotel. I have, on this blog, been following his action against the hotel (see here, here, here, here). In Presho v Doohan [2009] IEHC 619 (17 July 2009), Murphy J held that the appropriate remedy lay not in reinstatement of the demolished house “but in the provision of a comparable dwelling on Tory Island or the open market value of a comparable dwelling on the island”. He later held that this amounted to €46,000. The story has resulted in a book and tv documentary. Now, from the Irish Independent, I learn both that the matter was appealed by both parties, and that the various appeals have been discontinued:

Filmmaker’s Supreme Court appeal over home that ‘disappeared’ is dismissed

The Supreme Court has struck out an appeal over a €46,000 valuation placed on a man’s Tory Island holiday home that “disappeared” while he was abroad over a number of years. … After he won in the High Court in 2009, both defendants brought appeals against that court’s ruling.

When the matter came before the Supreme Court yesterday, it heard Mr Doohan, who was not in court, had stated he was not proceeding with his appeal. The appeal by Ostán Thoraigh Comhlacht Teoranta had been withdrawn last November. In those circumstances, the court struck out Mr Doohan’s appeal and affirmed the High Court orders. …

The Irish Times has a similar report. An earlier stage of the appeal was dismissed last November (see here, here, and here). And so ends a very sad tale, not with a bang but with hardly a whimper.

The Government has today published the General Scheme of the Data Protection Bill 2017 (press release | scheme (pdf)) to give further effect in Irish law to the EU General Data Protection Regulation and to implement the associated Data Protection Directive for law enforcement bodies. The publication of the Heads is a very welcome development indeed. There will, in the coming weeks and months, no doubt be much discussion of the Heads, and I hope that the draft will be improved as a consequence. For now, I want to make two points, about repeals of existing legislation, and the availability compensation for infringement of the GDPR.

The first point is brief enough. Existing Irish law is contained in the Data Protection Acts 1988 and 2003 (also here and here; the ODPC’s unofficial but extremely helpful administrative consolidation is here), which are not very easy to work with. Head 5 deals with “Repeals”. My fervent hope is that the 1988 and 2003 Acts will be repealed, and that the new Bill will provide a single one-stop-shop for all Irish law on data protection. My hope has been neither fulfilled nor dashed by Head 5. It’s blank. The explanatory note says that the existing Acts “will be largely superseded by” the GDPR and Directive, and that this “Head will be completed during the drafting process”. The equivocation in that “largely superseded” is redolent of indecision both as to the scope and effect of the GDPR and as to the retention of the 1988 and 2003 Acts. All I can say is that the Head that emerges from the drafting process should repeal the 1988 and 2003 Acts, and that any parts of those Acts that need to continue should re-enacted in the new Bill.

The second point is a little longer. The availability of damages, as an important element of the enforcement architecture of the GDPR was one aspect of my talk this week for the Irish Centre for European Law’s Privacy and Data Protection Conference 2017. Article 82(1) GDPR provides:

Any person who has suffered material or non-material damage as a result of an infringement of this Regulation shall have the right to receive compensation from the controller or processor for the damage suffered. …

Update (11 July 2017): I can’t find a Head in the Scheme explicitly giving effect to Article 82 GDPR. (more…)

The Department of Arts, Heritage, Regional, Rural and Gaeltacht Affairs, on behalf of the National Library of Ireland, is currently undertaking “a consultation on the legal deposit of published digital material in the 21st century in the context of copyright legislation” (see here and here). In particular, the Department welcomes submissions in relation to three questions:

Question 1: Should the policy of collecting, preserving and making available the published output of the nation for the benefit of the public be extended to include all contemporary publication formats of Irish interest including online digital formats e.g.,.ie websites?

Answer: Yes.
I have already set out my views on this issue on this blog. The starting point is Section 198 of the Copyright and Related Rights Act, 2000 (also here), which provides that publishers of books and other paper publications must deliver a copy of each book or publications published in the state to various copyright deposit libraries. Most countries worldwide have similar provisions, and they ensure the preservation and the availability of a nation’s published heritage. With the rise of digital publishing, it is increasingly being recognised that print deposit is incomplete, and that a comprehensive preservation of a nation’s published heritage requires that copyright deposit should extend to online publications as well. As a consequence, countries with copyright deposit legislation are amending their legislation to ensure that generations of will have access to today’s online stories. As a consequence, the Copyright Review Committee (of which I was chair), in the Modernising Copyright Report (pdf), recommended amendments to the 2000 Act to extend the existing copyright deposit regime for print publication in section 198 to digital works. In particular, we recommended some changes to the existing section 198; and we recommended a new section 198A broadly modelled on the existing section 198 CRRA, to ensure that the process of claiming digital publications is as similar as possible to the existing familiar process relating to books and other print publications. And we additionally recommended that the copyright deposit institutions should be able to make copies of our online digital heritage whilst it is available. No doubt our recommendations and drafts can be improved, but I remain convinced that they are an excellent starting point for achieving a feasible digital copyright deposit regime in Ireland.

Question 2: What issues arise if a policy extension on digital legal deposit is not provided for?
Answer: The real point about the size of the digital universe in the future is not about how big it will be (it will be huge) but how much is being lost (that is also huge). To take only one example, Sharon Healy did a study of link rot in the Modernising Copyright Report, and she concluded that 20% of the links in the footnotes of that Report are broken, meaning that the linked resource is no longer available. And our sources were official or public ones. To my mind, this is a perfect encapsulation why copyright deposit institutions should be able to claim digital publications and make copies of online resources – even the formal material is disappearing at frightening pace. In the US, the nonprofit Internet Archive harvests more than 250m webpages a week; it is now more than 20 years old. However, the copying by any Irish equivalent would infringe copyright in the material harvested, which is why an amendment to copyright legislation is necessary; we are already 20 years late; and the longer we wait, the bigger and blacker the digital black hole of lost material will become. It is a challenge our libraries and heritage institutions are willing to meet, if only they are let.

Question 3: What are the benefits if a policy extension on digital legal deposit is provided for?
Answer: The benefits will be not only cultural but also economic. On the cultural side, exciting projects in TCD Library and the NLI show the potential. On the economic side, the cover story of this week’s Economist tells us the world’s most valuable resource is no longer oil, but data. To take only one example, the field of Artificial Intelligence (AI) is red hot, but researchers need data on which to train and develop their AI engines. The loss of culturally significant data diminishes AI data-sets and impoverishes decisions based upon them. More generally, a proper archive of digital publications will be a resource for citizens and researchers, at home and abroad, now and in the future. The generations to come will not thank us if we do not legislate now for legal deposit of digital publications.

The saga in Bollea v Gawker shows two remedies for invasion of privacy. Hulk Hogan (real name, Terry Gene Bollea; pictured left), is a former professional wrestler and American television personality. Gawker was a celebrity news and gossip blog based in New York. In October 2012, Gawker posted portions of a secretly-recorded video of Hogan having sex in 2006 with one Heather Cole, who (as Heather Clem) was the then-wife of his then-best-friend (the wonderfully-monikered radio personality Bubba “the Love Sponge” Clem). In March 2016, a jury found Gawker liable for invading Hogan’s privacy, and awarded him a total US$140m – Gawker itself was held liable for US$115m in compensatory damages (including US $60 million for emotional distress), and US$15m in punitive damages; Gawker’s CEO, Nick Denton, was held personally liable for US$10m in punitive damages.

Gawker and Denton immediately announced that they would appeal; but first Gawker, and then Denton, both soon filed for bankruptcy. In August 2016, Gawker itself was shut down, and the media group of which it was a centrepiece was sold for US$135m. This provided the funds for a settlement: in November 2016, the case was ultimately settled for US$31m; and, in March 2017, Denton came out of bankruptcy. The US$140m damages award and eventual US$31m settlement show one remedy for invasion of privacy. In particular, this raises the issue of the extent to which damages for invasion of privacy are available at Irish law – even if, in privacy claims as in so many other areas, damages in Ireland are not of the same order of magnitude as in the US.

In a plot twist that might once have been revealed by Gawker itself, it emerged that Hogan’s case had been secretly financed by Peter Thiel, a technology billionaire (after a short career as a lawyer, he co-founded Paypal, and was Facebook’s first outside investor; he is currently founder and Chair of Palantir Technologies, and a partner at VC firm Founders Fund). This was his revenge for Gawker’s outing of him as gay in December 2007. As an application of the principles of “don’t get mad; get even” and “revenge is a dish best served cold”, this is certainly a novel remedy for invasion of privacy; but it is one that is only available to American tech billionaires. More practical are claims for injunctions and damages.

Where there is a threatened invasion of privacy, by intrusion or publication, the usual remedy is to seek an injunction to prevent it. If an injunction is refused, or if the invasion of privacy has already occurred, then the plaintiff will often seek damages. Such damages will prove an important part of the enforcement architecture of the General Data Protection Regulation [GDPR] and the proposed Regulation on Privacy and Electronic Communications [Proposed ePrivacy Regulation; hereafter: PePR (my acronym)]. “Money remedies for invasion of privacy at Irish law, to provide compensation for breach of the GDPR and of the Proposed ePrivacy Regulation” was the theme of my talk for the Irish Centre for European Law’s Privacy and Data Protection Conference 2017.

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The Irish Independent reports that the Gardaí (the Irish police) have launched a blasphemy probe into comments made by Stephen Fry (pictured left) on the television show The Meaning of Life:

Gardaí have launched an investigation after a TV viewer claimed comments made by Stephen Fry on an RTE show were blasphemous. Independent.ie can reveal that a member of the public reported the allegation to Ennis garda Station following a broadcast of ‘The Meaning of Life’, hosted by Gay Byrne, in February 2015.

The story has been picked up by the media, in Ireland and abroad – including the BBC, CBS, the [UK] Independent, the Irish Times, RTE, the Mail online, The Journal.ie the Sunday Times (sub req’d), the Observer, the Sunday Telegraph, and the Sydney Morning Herald.

The crime of blasphemy is provided for in section 36 of the Defamation Act, 2009 (also here). Subsection (1) provides that a “person who publishes or utters blasphemous matter” shall be guilty of an offence; anyone guilty of the offence is liable to a fine not exceeding €25,000.

Subsection (2) provides a threefold definition of when a person publishes or utters blasphemous matter. First, the matter in question must be “grossly abusive or insulting in relation to matters held sacred” by a religion. Second, it must cause “outrage among a substantial number of the adherents of that religion”. And, third, the person who published or uttered the blasphemous matter must intend to cause such outrage. I’m not sure that any, let alone all, of these three elements were made out by Fry’s interview. An articulate challenge to God is not gross abuse or insult to a religion; controversy is not outrage; and candidly defending atheism is not intentionally causing outrage.

However, even Fry’s if comments do meet these criteria, subsection (3) provides that it is a defence to prove “that a reasonable person would find genuine literary, artistic, political, scientific, or academic value” in the relevant matter. I think that Fry’s interview would easily meet that standard; just as I thought that an Irish publication of the Charlie Hebdo cartoons of the Prophet Mohammed would too. As Atheist Ireland told the Sunday Times (sub req’d), the Garda investigation “highlights a silly, silencing and dangerous law”.

But it should not have come to this. Freedom of expression is protected by Article 40.6.1(i) of the Constitution, and the last sentence of that paragraph provides that the publication or utterance of blasphemous matter is an offence punishable by law. In Corway v Independent Newspapers [1999] 4 IR 485, [2000] 1 ILRM 426, [1999] IESC 5 (30 July 1999) (noted here), the Supreme Court held that there was no clear statutory definition of blasphemy to give effect to this provision. Section 36 was enacted to fill that legislative gap. On Monday 27 January 2014, the Constitutional Convention published its Sixth Report, recommending the removal of the offence of blasphemy from the Constitution. But the last government kicked the issue to touch; and the current government’s most recent Legislation Programme (pdf p17) says only that “preliminary work has commenced” on a Bill to provide for a referendum on removing the crime of blasphemy from the Constitution. I contributed to the deliberations of the Constitutional Convention that led to this recommendation, and I am disappointed that it has not been implemented.

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Two sole traders form a partnership, and then fall out, so that one sues the other for outstanding monies. It is a common enough story now, and was even in the early 1700s. There is normally little of general interest in such case; but, in 1725, the additional facts in Everet v Williams earned it a notoriety that persists to this day, because the plaintiff had sued the defendant for the proceeds of highway robbery, and there had been a classic falling out amongst thieves. Unsurprisingly, the Court declined to lend its aid to the claim, and dismissed the case with costs (see Everet v Williams (1725) reported (1787) 2 European Magazine 360 (pdf) and (1893) 9 Law Quarterly Review 197 (pdf); see also William David Evans (ed) Pothier on Obligations (Strahan, London, 1802, vol 2) 3 (pdf); Nathaniel Lindley A Treatise on the Law of Partnership (1st ed, Johnson & Co, London, 1860) 161 (pdf); Robert Megarry Miscellany-at-Law (Sweet & Maxwell, London, 1955) 76 (pdf); mentalfloss).

The Court’s approach in this case was replicated by Twomey J in English v O’Driscoll [2016] IEHC 584 (25 October 2016), whilst the case itself was cited by Humphreys J in the High Court in KP v The Minister for Justice and Equality [2017] IEHC 95 (20 February 2017). In this short post, I want to mention the outcome in Everet v Williams, note its subsequent judicial citation, and refer briefly to the recent judgments of Humphreys and Twomey JJ.

In Everet v Williams, the Court referred the matter to the wonderfully-titled Deputy Remembrancer of the Court of Exchequer in Equity. His report that the case was a matter of “scandal and impertinence” was confirmed by the Court; the parties solicitors were attached for contempt and fined £50 each for reflecting so disreputably “upon the honour and dignity” of the Court; and the lawyer who drafted the plaintiff’s proceedings was ordered to bear the costs of the action for causing such “indignity to the Court”. But the parties did not learn their lesson; and they continued – separately – to ply their trade, until their luck eventually ran out: John Everet, the plaintiff, was executed at Tyburn in 1730; and Joseph Williams, the defendant, was executed at Maidstone in 1727 – by not hanging together, they were hanged separately, proving Benjamin Franklin’s aphorism half a century before he uttered it!

Moreover, in 1735, the almost equally colourful William Wreathock, the plaintiff’s solicitor, was convicted of conspiracy and robbery, and sentenced to be hanged. However, his sentence was commuted to transportation, though he eventually obtained a Royal Pardon, returned to England, and resumed his practice; nevertheless, he was struck off the roll of attorneys in 1758 (see Malcolm McKenzie Park “William Wreathcock – Imperfect Attorney” (1993) 87 Victorian Bar News 73 (SSRN)).

The case has had a strong pull on the legal imagination down the ages. (more…)