cearta.ie – Page 52 – the Irish for rights

I spent this morning at a fascinating Seminar (pdf) on the National Strategy for Higher Education (the Hunt Report, which I blogged here), organised by my TCD colleagues Dr Andrew Loxley, Dr Aiden Seery, and Dr John Walsh, (CAVE, School of Education, TCD). This is the first of ~~four~~ three blogposts about the event. The first panel concerned Who pays for College? Expansion and Sustainability in Higher Education. It was chaired by Prof Maria Slowey (DCU), and featured Mike Jennings (IFUT), Tony Donohoe (IBEC), Ryan Bartlett (President, TCD SU; and student in School of Education, TCD), and Dr Erika Doyle (TRSA).

In her introduction, Maria pointed out that the question of “who pays?” is much broader than fees, hence questions of expansion and sustainability in the subtitle.

Mike began his very witty presentation by observing that the Hunt Report is underwhelming and full of internal contradictions. Erika similarly observed that the Report is long on aspiration, but short on detail. And both of them felt that it betrays its lack of engagement with serving academics; and they and Ryan all observed that, where there are bars to access to higher education (HE), one family member may not be able to go to College to allow another to do so.…

Today

13 April, 201216 April, 2012

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| General

As I explained for this date last year, I spent lunch-time listening to Our Lady’s Choral Society‘s annual performance of highlights from Handel’s Messiah on the site on Fishamble Street, Dublin, on which it had its world première on this day in 1742. The image above is a photo of the performance (click on it for a larger image). Unusually for Dublin, and thankfully, the rain stayed away! Update: here’s a report in the Irish Times and another in the Irish Independent.

And the performance was great, especially the audience-participation “Hallelujah Chorus” encore. I’m looking forward to next year already. …

Open justice and closed tribunals: refugee hearings and the Rule of Law

13 April, 20126 December, 2022

| 6 Comments

| Freedom of Expression, Media and Communications, Open Justice, The Rule of Law

In a previous post, I considered the common law and constitutional aspects of the principle of open justice. In Wednesday’s Irish Times, Carol Coulter reported on a case in which a child asylum seeker is alleging perceptible bias on the part of a member of the Refugee Appeals Tribunal. At present, the applicant is seeking leave to bring judicial review proceedings against the rejection of her asylum application, and the leave hearing is expected in the coming months. In an accompanying story, Coulter discussed previous cases which have challenged the secrecy and perceived unfairness of the Tribunal. That reference to “secrecy” set me thinking about the principle of open justice in the context of closed tribunals, and this post is a first attempt at applying the principle in that context. In that respect, I very much welcome discussion of my analysis in the comments.

The starting point is section 19(4A) of the Refugee Act, 1996 (also here) as inserted by section 7 of the Immigration Act, 2003 (also here), which provides:

(a) The chairperson of the Tribunal may, at his or her discretion, decide not to publish (other than to the persons referred to in section 16(17) [of the 1996 Act, also here]) a decision of the Tribunal which in his or her opinion is not of legal importance.

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Reform of Contract Law

13 April, 20127 November, 2012

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| Contract

Not only is the Scottish Law Commission (SLC) undertaking a comprehensive review of Scots Contract Law in light of the Draft Common Frame of Reference (DCFR) of Principles, Definitions and Model Rules of European Private Law, but the Australian Attorney-General, Nicola Roxon, has just released a discussion paper to explore the scope for reforming Australian Contract Law.

The most recent discussion paper produced by the SLC discusses contract formation for the electronic age (DP 154, March 2012, pdf). It follows an earlier discussion paper with interpretation of contract (DP 147, Feb 2011, pdf), and a joint project (pdf) with the Law Commission of England and Wales on the proposed Common European Sales Law. Moreover, the SLC intend to publish further discussion papers, including one in the near future on remedies for breach of contract. Chapter 9 of the contract formation discussion paper contains 51 questions, and the Appendix contains some draft statutory provisions, drawn from various European texts.

The Australian review is equally as ambitious. The discussion paper (doc | pdf) aims to improve the efficiency and effectiveness of commercial and consumer transactions; and it therefore considers whether Australian contact law could be reformed to:

enhance accessibility, certainty and simplicity
set standards of conduct
better support innovation and participation in the digital economy
better meet the evolving needs of businesses particularly small and medium businesses
make the law more elastic to promote long-term relationships, and
harmonise and internationalise contract law.

…

Offence and confusion – updated

12 April, 201224 April, 2012

| 2 Comments

| advertising, Freedom of Expression

Adverts by the Core Issues campaign group, centred around the slogan above, suggesting that gay people could be cured, have been banned from London buses by Boris Johnson, Mayor of London, and chair of Transport for London.

On the other hand, the British Humanist Association ran an advertising campaign on London buses several years ago. Their slogan said “There’s probably no god. Now stop worrying and enjoy your life”. More recently, Stonewall ran a campaign around the slogan “Some people are gay. Get over it!”.

Both the BHA campaign and the Core Issues campaign were controversial, ~~and cleared by the Advertising Standards Authority~~ update: notwithstanding earlier reports, it seems that the ASA did not adjudicate on the Core Issues campaign. But the opposition to the latter has been much greater, resulting in the Mayor’s decision to ban the adverts. I am very confused about this, as I can see no material difference between the three campaigns. All three are insulting or offensive to significant groups of the population, and all three should be assessed on the same standard. They should all be published, or all banned. For my own part, I think that the above slogan is horribly offensive, but I don’t think that offense is a sufficient standard to ban it or any of the other adverts.…

Defamation and internet publication in the Irish Supreme Court

12 April, 20124 March, 2013

| 1 Comment

| Cyberlaw, Defamation

In Coleman v MGN Limited [2012] IESC 20 (15 March 2012) (here and here), Denham J held:

10. The claim is now one of internet publication based on the jurisprudence in the linked cases of eDate Advertising GmbH v. X (C 509/09) and Martinez v. Société MGN Limited (C 161/10) referred to as Martinez. It was submitted that the Daily Mirror is on line every day. Counsel admitted that there was no evidence of such publication or of a person accessing such a site. His submission related to an additional site, and not to UKPressOnline which is an archival site, and which formed the substantial subject of the additional affidavit. Counsel submitted that the Daily Mirror being on line it is presumed that there would be hits on the site. Thus, the case hinges on the issue of publication on the internet. …

12. The case is now one where it is the plaintiff’s case that the defamation was published on the internet. Specifically he referred to the Daily Mirror on line. There was also reference to UKPressOnline, which is an archival website, to which institutions, such as academics, have access if they subscribe, but there is no general access other than to a thumbnail miniature of part of the article and photograph.

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‘Free comment on private lives under the Defamation Bill’? – Gavin Phillipson « Inforrm’s Blog

4 April, 20124 March, 2013

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| Defamation

… where speech is primarily concerned with a critique of someone’s private life, it will generally be seen as of decisively lower value, easily outweighed by reputational or privacy interests. Defamation law should recognise this by requiring that defamatory comments should be on a matter of public interest in order to attract protection under the ‘honest comment’ defence. This would ensure that both defamation and privacy law continue to develop in a harmonious way that answer to the relevant Article 8 and 10 values. Otherwise the result will merely be complex litigation in which newspapers seek to use ‘comment’ as a way of dragging peoples’ personal lives into disrepute in circumstances where to make the <em>factual</em> allegations that could justify the opinion would clearly incur liability under  the tort of misuse of private information. Encouraging the publication of derogatory opinions about people’s private lives, where the relevant facts cannot be published without liability, is scarcely an aim that is in harmony with Article 8 – or indeed Article 10.

via inforrm.wordpress.com

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Alternative Libel Project Report: Costs, ADR and Leveson – Helen Anthony « Inforrm’s Blog

4 April, 20124 March, 2013

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| Defamation

English PEN and Index on Censorship, two organisations committed to freedom of expression, embarked on the Alternative Libel Project last April and have spent the last year considering whether defamation claims can be resolved in a better way than by using the current High Court process. The project was funded by the Nuffield Foundation, and Index and PEN have had support and advice throughout from members of an expert advisory committee, chaired by Sir Stephen Sedley. The project’s final report, in which Index and PEN make recommendations for change was launched in the middle of March.

The report calls for a culture change but does not contain radical proposals, except perhaps on costs, although even here our recommendations are not without precedent in other areas of law. Instead it concentrates on improving the current system, ensuring judicial encouragement for parties to use methods of alternative dispute resolution (ADR), and calls for consistent, robust case management so that the court, and not a wealthy party, controls the litigation. The details of our recommendations can be found in the report, so I will not repeat them here. Instead, I’d like to expand on our thinking on three key issues.