Notes on the Irish passport (and the National Anthem, again)

Passport p8 (element) (via, this post isn’t about the notes on the forms to be filled in to apply for a passport, or even about explanatory notes that might appear on the passport itself. Instead, it’s a musical post, (about the National Anthem – the most recent in a series, earlier posts are here, here, here, here and here), based on a letter in today’s Irish Times:

Notes on Irish passport


In a queue at Dublin Airport last week, my daughter Alex was curious about music notation on successive pages of her passport and asked me to read the music.

To our surprise and delight, it was the music of our National Anthem. Whoever imagined this subtle celebration of Irish musicality should be congratulated.

Yours, etc,

Keith Donald,
Chair of the Irish Music Rights Organisation,
Lower Baggot Street,
Dublin 2.

The image, above left, via, shows some of those notes. I saw this letter in the paper version of the Irish Times, and whilst searching online for the letter on the Irish Times site, and for an appropriate image, I also found the following post on the website of Absolute Graphics – a marketing, design and print company based in Bray, Co. Wicklow:

Irish Passport Design

… The challenge was to design a passport that incorporated cutting edge security features while maintaining and reflecting ‘Irishness’ throughout. The Department of Foreign Affairs and Trade appointed Absolute Graphics (as part of a consortium led by [Security Print Group] DLRS Ltd) to create the new passport from design through to finished product. …

On the design side, we combined the traditional with the contemporary. From the entrance stone at Newgrange to the Aviva Stadium in Lansdowne Road, the design celebrates everything Irish – history, poetry and sport, tradition and modernity. … over 60 different design and security features are employed in the passport.

It’s a prize-winning document, and now another of its many careful design features has charmingly emerged like a Venus from the waves. I join in Keith’s congratulations to Absolute Graphics.

The BAI is conducting a review of its strategic objectives (including media pluralism and diversity)

BAI Strategy Statement CoverHot on the heels of the announcement of a review of the Defamation Act 2009 (also here) by the Department of Justice comes news of a consultation by the Broadcasting Authority of Ireland on its Strategy Statement for 2017–2019 (download pdf).

Sections 66(2)(i) and 137(2)(i) of the Broadcasting Act, 2009 (also here) require the BAI to have regard to “the desirability of allowing any person, or group of persons, to have control of, or substantial interests in, an undue amount of the communications media” in a specified area.

Against this background, and in the context of the recent debate about the constitutional issues facing the regulation of media ownership in Ireland, (especially where such regulation is directed to the promotion of pluralism and diversity), the BAI’s proposed Mission Statement provides that it is the aim of the BAI [emphasis added] –

I To regulate, foster and support broadcasting in the public interest;
II To promote a plurality of voices, viewpoints, outlets and sources in Irish media;
III To foster diverse and culturally relevant quality content for Irish audiences.

Moreover, one of the five proposed strategic themes is the promotion of diversity and plurality, with the following strategic objectives:

1 [To] Facilitate a mix of voices, opinions and sources of news and current affairs in audio-visual media which enhances democratic debate and active citizenship in Ireland.
2 [To] Increase the production and availability of culturally relevant audiovisual content for Irish audiences.
3 [To] Foster a media landscape that is representative of, and accessible to, the diversity of Irish society.

Reporting on the launch of the consultation, Laura Slattery in the Irish Times writes (with added links):

BAI chief executive Michael O’Keeffe said the authority also planned to re-examine the media ownership and control policy [pdf] in place since 2012. … The broadcasting regulator could yet become involved in the proposed Independent News & Media takeover of Celtic Media Group’s newspapers – if it is nominated to consider the plurality implications of the acquisition by Minister for Communications Denis Naughten, despite the fact that the deal involves two print groups.

A survey of industry participants [which will be available here in due course] indicated the BAI “is not particularly visible in leading the debate on plurality”, said Karen Hall, account director at research firm Ipsos MRBI.

Given that the recent Report on the Concentration of Media Ownership in Ireland (download pdfs here, here and here; blogged here) calls on the Irish government to tackle Denis O’Brien’s media control, it is interesting to note the BAI’s 2012 position on this issue in the context of their Ownership and Control Policy:

Mr. O’Brien’s company Communicorp controls, and/or has substantial interests in, six independent radio services in Ireland … Mr. O’Brien’s interests in Independent News and Media (“IN&M”) are [also] relevant to the Authority …

At its meeting on 23rd July 2012 the Authority determined that Mr. O’Brien does not control IN&M. Rather he has a substantial interest in the Company, as that term is defined in the Policy. In this regard, the Authority was not obliged to review Mr. O’Brien’s interests in the context of an undue amount of communications media.

Of course, this is only one question amongst many important issues in the consultation. Responses are requested by 12 noon on Thursday, 1st December 2016, by by email or by post to Draft Strategy, Broadcasting Authority of Ireland, 2–5 Warrington Place, Dublin 2.

The Department of Justice is conducting a review of the Defamation Act 2009

DoJEDublin (element of Wikipedia photo)The Tánaiste and Minister for Justice and Equality has announced a review of the operation of the Defamation Act 2009 (also here), and is now inviting contributions and submissions by 31 December 2016. This is excellent news.

According to the announcement on the Department’s website, the aim of the review is:

– to promote an exchange of views and experiences regarding the operation in practice of the changes made by the 2009 Act,

– to review recent reforms of defamation law in other relevant jurisdictions,

– to examine whether Irish defamation law, and in particular the Defamation Act 2009, remains appropriate and effective for securing its objectives: including in the light of any relevant developments since 2009,

– to explore and weigh the arguments (and evidence) for and against any proposed changes in Irish defamation law intended to better respond to its objectives, and

– to publish the outcomes of the review, with recommendations on appropriate follow-up measures.

Interestingly, the review excludes the blasphemy provisions of the Act (sections 36 and 37), because the issue will be the subject of a constitutional referendum, as provided in the Programme for a Partnership Government. Moreover, the review will take into account any relevant recommendations of the recent Report of the Law Reform Commission on Harmful Communications and Digital Safety.

The Press Council of Ireland welcomed the review and confirmed that it will be making a submission, as has NewsBrands Ireland, the representative body for national newspapers. Similarly, the NUJ told the Irish Times that the “review should be seen as a welcome step for all citizens. It must be a review aimed at enhancing freedom of expression rather than simply a means of reducing defamation costs”. Shane Phelan, in the Irish Independent, also welcomed the

… long-overdue review of Defamation Act, amid continuing concern the size of libel awards in Ireland are having a chilling effect on the media’s role as a watchdog for the public.

This is not the first time that an INM title has argued that the 2009 Act has brought about only limited changes. NewsBrands regularly make a similar point. Both arguments are bolstered by reference to the €1,250,000 damages award in Leech v Independent Newspapers [2014] IESC 79 (19 December 2014). However, although libel damages are indeed still high, this focus is misconceived. That case was decided on the basis of the law as it applied before the Defamation Act 2009, which introduced a whole range of reforms to meet the concerns expressed by INM and NewsBrands. Their arguments would be stronger if they focussed on the reality of the application of the Act and not on an objectionable outcome produced by the unreformed pre-Act common law.

The review is indeed long-overdue, and much to be welcomed. But arguments against the pre-Act law by those who are advocating for further reform do their case no favours. Instead, I hope that the submissions make strong arguments in favour of coherent and effective reform of our libel laws.

What are the constitutional issues facing the regulation of media ownership in Ireland?

Element of Media Report CoverA just-published Report on the Concentration of Media Ownership in Ireland (download pdfs here and here) directly addresses the question in the title to this post: what are the constitutional issues facing the regulation of media ownership in Ireland. The Report concludes that such issue do not prevent government action here, and calls on the Irish government to tackle Denis O’Brien’s media control. It seems that some media are ignoring it. That is a pity. It is a very important Report. It was commissioned by Lynn Boylan MEP on behalf of the European United Left/Nordic Green Left (GUE/NGL) group of the European Parliament, and was prepared by Caoilfhionn Gallagher and Jonathan Price, barristers in Doughty Street Chambers, London, and Gavin Booth and Darragh Mackin, of the Belfast solicitors’ firm KRW Law. It was launched in Leipzig (panel | photo) on 6 October last, and in Dublin last night (press notice | photos).

Here’s a flavour of the Report, from the executive summary [with added links to relevant posts on this site]:

1.8 In our view, taken together, the combination of the highly concentrated Irish media market, Mr. O’Brien’s threats and initiation of a large number of legal proceedings against media and other critics, and serious shortcomings in the defamation framework create a perfect storm which threatens news plurality and undermines the media’s ability to perform its watchdog function. … We strongly recommend that these concerns be addressed as a matter of urgency, and be seen to be addressed.

1.13 The Report’s authors are aware of suggestions that there are legal bars to any such action being taken, but we reject any suggestion that it is not legally permissible to address the status quo and that tackling the current concentration of media ownership is impossible given the importance of property rights in the Irish Constitution and/ or the European Convention on Human Rights (“ECHR”). On the contrary, our conclusion is that there is, in principle, no such legal bar. A retrospective mechanism could indeed be permissible under the Irish Constitution, EU law, and the ECHR. …

1.14 However, whilst this matter of principle is clear, there remain complex and nuanced issues to consider. The devil is very much in the detail, and these are difficult issues. What is now needed is a careful review of the detail, and, accordingly, the Report recommends that the Government establish a cross-disciplinary Commission of Inquiry. This Commission should examine the issues closely and make concrete recommendations, within a tight timeframe. [emphasis added; see also para 6.6]

This is an important call, which I hope the government will heed, but I won’t hold my breath. (more…)

Privacy Paradigm – getting the design right

ODell@ICS2 I spoke today at the (ISC)² Security Congress EMEA in Dublin. Before me, Minister Naughten gave an opening address; after me, Brian Honan provided a fascinating keynote.

In between, I beat the drum (again) for Privacy Paradigm. The image, left, is an artist’s impression of the highlights of my talk. If you click through, you will get a bigger version, and – as a bonus, on the same sheet – the same artist’s impression of the talks from Brian and the Minister as well.

What I am hoping to do with Privacy Paradigm (if anyone wants to fund the research) is provide a simple means by which websites could signal not only that they respect their visitors’ privacy but also how (if at all) the sites processe personal data. For this, by analogy with Creative Commons, I suggest an appropriate icon and short accompanying text which explains that the site operates under a standard-form privacy policy, with a link to the underlying privacy policy, provided by an appropriately coded plugin. In my view, the key is to start with the standard-form privacy policies, and to code them accordingly, and then to provide the icons.

There have been many previous attempts covering some elements of this strategy, but none has caught on. This is in part because they have been partial (not replicating the full depth of the Creative Commons precendent), in part because they started with the icons and didn’t get much further, and in part because the icons haven’t been great (either too many, nor not intuitive, or not connected with underlying privacy policies). The image at the top is very good, and it emphasises for me that, although the icons should probably come near the end of the process, they need to be good – clear, intuitive and few in number. If they work, then Privacy Paradigm will be able to live up to its slogan of “respecting privacy online”.

The Global Futures of Unjust Enrichment, 21-22 April 2017

Goff&JonesA conference on the theme of the Global Futures of Unjust Enrichment will be held on Friday 21 April 2017 and Saturday 22 April 2017 in the UCL Gustave Tuck Theatre, Wilkins Building, Gower Street, London WC1 (map here).

The Bentham House Conference 2017 celebrates the publication of the 50th anniversary edition of Goff & Jones: The Law of Unjust Enrichment, and honours the memory of the book’s first authors, Lord Goff of Chieveley and Professor Gareth Jones, who both died in 2016. The conference brings together leading scholars from around the world to consider the future of unjust enrichment in overseas jurisdictions, and to discuss current problems and controversies in English law.

The emergence of the law of unjust enrichment as a distinct part of the law of obligations was the most important and radical development in English private law of the last hundred years. Academic writing played a significant role in this development, and most significant of all was Robert Goff and Gareth Jones’s seminal work on the topic in 1966. The speakers paying tribute to Goff and Jones are a veritable who’s-who of contemporary private law. On Friday 21 April 2017, they will discuss the future trajectory of the law of unjust enrichment in overseas jurisdictions; and on Saturday 22 April 2017, they will consider a series of important issues which have been thrown up by the English case law over the past decade, and which will require significant further attention from the courts.

The conference has been convened by Professor Charles Mitchell (UCL), Professor Paul Mitchell (UCL) and Dr Stephen Watterson (Cambridge). More information about the conference, including the draft conference programme, speaker biographies, and booking, is available here.

Exhausting exhaustion – the limits of the first sale doctrine in EU copyright law

ExhaustionThe exhaustion of intellectual property [IP] rights by the first sale of the protected work is a fundamental principle of IP law. Where a work or product covered by an IP right is sold by the rightholder, that IP right is exhausted in the sense that it can no longer be exercised by the rightholder to prevent the purchaser from selling or lending the work or product to a third party. For example, Article 4(2) of the Software Directive (Directive 2009/24/EC) provides

The first sale in the Community of a copy of a program by the rightholder or with his consent shall exhaust the distribution right within the Community of that copy, …

Article 4(2) of the InfoSoc Directive (Directive 2001/29/EC) is in similar terms. In Case C-166/15 Ranks and Vasilevics, the Court of Justice of the European Union [CJEU] explored the limits of this rule, and established the point at which the exhaustion doctrine is itself exhausted. As to the rule, the CJEU held:

The holder of the copyright in a computer program who has sold, in the EU, a copy of that program on a material medium (such as a CD-ROM or a DVD-ROM) with an unlimited user licence can no longer oppose the subsequent resale of that copy by the initial acquirer or subsequent acquirers of that copy, notwithstanding the existence of contractual terms prohibiting any further transfer.


Preserving the Consistency and Integrity of the EU Acquis Relating to Content Monitoring

EU data monitoringI am a signatory to the following:

Open Letter to the European Commission – On the Importance of Preserving the Consistency and Integrity of the EU Acquis Relating to Content Monitoring within the Information Society

Recent developments, starting with the Communication on Online Platforms and the Digital Single Market Opportunities and Challenges for Europe released on 25/05/2016, followed by a series of proposals (Proposal for a Directive amending the Audiovisual Media Services Directive, Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market) and soft law initiatives (the EU Internet Forum against Terrorism and the Code of Conduct on Countering Illegal Hate Speech Online) seriously put at risk the consistency and integrity of the EU acquis related to the information society.

A key component of this acquis is the prohibition of general monitoring obligations to the benefit of providers of intermediary services. It is a means to achieve at least two central objectives: the encouragement of innovation as well as the protection of fundamental rights of all Internet users, namely the rights protected by Articles 8 and 11 of the European Convention of Human Rights. Yet, the proposed Copyright Directive, in particular, seems to negatively affect both the domain and effect of Article 15 of the E-Commerce Directive. The signatories of this open letter therefore urge the European Commission to take into account the human rights dimension of Article 15 of the E-Commerce Directive, as made explicit by the Court of the Justice of the European Union, and to make sure its implications are carefully examined across sectors.

There are blogposts by other signatories are here (Eleonora Rosati on IPkat) and here (Sophie Stalla-Bourdillon on peep beep!); and the letter can be downloaded here.