Fred Muwema is a prominent lawyer in Uganda, who claimed that various Facebook pages in the name of Tom Voltaire Okwalinga, or TVO, defamed him. In Muwema v Facebook Ireland Ltd [(No 1)] [2016] IEHC 519 (23 August 2016), Binchy J declined to grant injunctions requiring Facebook either to remove the posts from the account or to prevent the material in them from being re-posted, and I considered these holdings in one of my earlier posts on the case (also here). However, Binchy J did grant an order requiring Facebook to identify TVO, and I considered this aspect of the case in another of my earlier posts on the case (also here). This was not a difficult issue, as the defendant had consented to the order. However, before the order could be perfected, the defendant sought the leave of the Court to introduce new evidence with a view to opposing the making of the order. In Muwema v Facebook Ireland Ltd (No 2) [2017] IEHC 69 (08 February 2017), Binchy J allowed the new evidence to be introduced; and, having considered it, he declined to make the order after all. It is to that aspect of the case that this post is directed.…
Social media, open justice, and contempt of court
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.…
Damages for Breach of the GDPR
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.…
Tory Island and Unjust Enrichment – a sad story ends not with a bang but a whimper
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 Heads of an Irish Bill to ensure GDPR compliance are very welcome, but they raise questions about repeals and compensation
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”.…
Legal deposit of digital publications
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.…
Damages and compensation for invasion of privacy and data protection infringements
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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.…
Blasphemy is in the news again; it should be removed from the Constitution, as the Constitutional Convention recommended
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.…