0. Prolegomenon, or Why me?
Today is Bloomsday, the centrepiece of a five-day festival in Dublin and online celebrating the day in 1904 on which the events of James Joyce’s novel Ulysses unfold, which is the day Joyce first formally went out with Nora Barnacle. Their story is brilliantly told in the best book I’ve read this year, Nuala O’Connor‘s Nora: A Love Story of Nora Barnacle and James Joyce (New Island Books, 2021).
Several years ago, I wrote a post about Bloomsday for a blawg carnival called Blawg Review; sadly, the review is now defunct; but I thought I might revisit and update the post. Just like Oh Brother, Where art Thou?, the novel loosely parallels Homer’s Odyssey, and the original blogpost very very loosely paralleled Joyce’s Ulysses (or at least his chapter headings), to introduce some interesting contemporary legal stories. I will keep the sub-Joycean introductions, to introduce some current legal stories, and I have fixed broken links in the text that I have retained.
1. Telemachus, or the State of Modern Universities
In the Odyssey, Telemachus is the son of Odysseus and Penelope; in Ulysses, Leopold Bloom corresponds to Odysseus, his wife Molly to Penelope, and Telemachus to Stephen Dedalus, an egotistic but immature intellectual (is there any other kind?) taken up by Bloom. The book opens with Stephen Dedalus, his friend Buck Mulligan (a medical student), and an English friend from Oxford, Haines, as they prepare for the day. Intellectuals and university students all, they would no doubt be fascinated by the state of the university. Today, universities are grappling with how to implement a government plan for a safe post-COVID return to on-site further and higher education and research in September; and the Irish Universities Association and the Union of Students in Ireland have warmly welcomed the plan. Throughout the pandemic, the COVID-19 Law and Human Rights Observatory, hosted by the School of Law, Trinity College Dublin, has been conducting research across the full range of Ireland’s legal response to COVID-19. Pedagogically, universities worldwide turned on a cent to move teaching online, which has provoked a spate of law suits, particularly in the US, for fee refunds. I’m not aware of any similar litigation in Ireland, but it is a political issue with no clear resolution in sight.
2. Nestor, or the Perils of the Internet
In the Odyssey, Telemachus visits the elder-statesman Nestor; in Ulysses, Stephen is teaching at private boy’s school in Dalkey (where Dublin’s glitterati, including U2’s Bono, live). Students in a Dalkey school may very well feature in the Government-funded longitudinal study of Growing Up in Ireland. There will be a Bloomsday launch of its most recent report relating to a cohort of 9 year old children (pdf). Most of those children are very active online (pp 15-16):
The vast majority (92%) of the Study Children reported having access to the internet, most commonly using an iPad or other tablet (56%), smartphone (17%) or games console (12%). Over two-thirds (69%) of children said this gadget belonged to them. The most common online activities (in the last week) were to play games alone (81%), watch YouTube videos (78%) and search for information (55%). The 9-year-olds were much less likely to use the internet for doing homework (with 18% doing so). Over half (53%) of 9-year-olds reported that they were allowed to use the internet without their parents or another adult checking what they were doing.
Last week, the French data protection authority, la Commission Nationale de l’Informatique et des Libertés (the CNIL) published 8 recommendations to strengthen the protection of minors online, including: regulating and supporting the ability of minors to act online, encouraging minors to exercise their rights; supporting parents in digital education; seeking the consent of a parent for minors under the age of 15 [in Ireland, that age is currently 16]; promoting parental tools that respect the privacy and interests of the minor; adapting terms and disclosures and reinforce the rights of minors by design; verifying the age of minors and obtain parental consent while respecting privacy; and providing specific safeguards to protect the interests of minors online. The Washington Post recently posed a question not directly addressed by the CNIL: Should teens’ social media posts disappear as they age (sub reqd).
3. Proteus, or the Travails of Censorship
In the Odyssey, Proteus is the sea god of many shapes; in Ulysses, Stephen walks on the sea front along Sandymount Strand, reflecting upon his surroundings, his own writing, and sexual matters. For its frank sexual content, Ulysses became one of the twentieth century’s quintessential banned books, but the ban in the US was overturned on free speech grounds in US v One Book Entitled Ulysses by James Joyce 5 F Supp 182 (SDNY, 1933), aff’d 72 F2d 705 (2nd Cir, 1934) (Library of Congress | wikipedia). RTÉ, the Irish national broadcaster, have made a courtroom drama of the case (it’s very well worth watching). And, to mark today, the Dictionary of Irish biography has published a blog post on Irish authors censored by the Censorship of Publications Board (which it is long past time to abolish). Ulysses was never banned in Ireland, simply because it was never published here so that it was never referred to the Board for banning. Indeed, it
was not widely available in the country until the 1960s. The 1967 cinema adaptation of Ulysses [added link] starring Milo O’Shea was banned by the Irish film censor [added link], however, and was not officially released until February 2001 [added link].
The film was also controversial in the UK. The British Board of Film Censors requested 29 cuts to remove sexual language from Molly Bloom’s great soliloquy. The director Joseph Strick replaced all the cut footage with a blank screen and a high-pitched shriek. The BBFC withdrew the cuts, and the film was distributed intact.
The governmental urge to regulate and censor is universal: the Irish government has published a General Scheme of an Online Safety Media Regulation Bill (noted here), the UK government has published a draft Online Harms Bill, and the Canadian government is seeking to introduce Bill C-10 which will target a wide range of content, including adult websites – as ever, on all things Canadian, Michael Geist’s blog has excellent coverage.
4. Calypso, or the Progress of Copyright
In the Odyssey, Calypso imprisons Odysseus as her sex-slave for seven years; in Ulysses, Leopold Bloom is at home at 7 Eccles Street preparing breakfast before departing for a funeral. The breakfast a much re-enacted part of the novel; but, even though Joyce is out of copyright in the EU, I will be chary of quoting the relevant passage in the novel for fear of the infamously litigious Joyce estate, who seem to think that there can never be too much copyright. A small rebalancing was attempted by the Copyright and Other Intellectual Property Law Provisions Act 2019 (also here) [COIPLPA], but the EU’s still-largely-unimplemented DSM Directive (Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC) is more controversial: the validity of the upload filter censorship in Article 17 is pending before the Court of Justice of the European Union (CJEU); and other problems with the Directive and its implementation are ably summed up by Eleonora Rosati today.
5. Lotus Eaters, or Future of Data Retention in Ireland
In the Odyssey, in the land of the Lotus Eaters, Odysseus’s men ate flowers which drugged them and made them forget about home, though Odysseus subsequently drives them back to their ship; in in Ulysses, Bloom walks the streets of Dublin, pondering much, including another sexually explicit letter from the mysterious Martha. Nowadays, he would no doubt have a similarly candid and anonymous correspondence online; and even if Molly didn’t find out about it, the Irish government could know, as a consequence of the Communications (Retention of Data) Act 2011 (also here). That Act implemented the Data Retention Directive (Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC), but it was struck down by the CJEU in Joined Cases C-293/12 and C?594/12 Digital Rights Ireland and Seitlinger (ECLI:EU:C:2014:238; CJEU, 08 April 2014) (the case was pending when I referred to it in the earlier carnival blogpost). The impact of this on the Irish legislation was raised in Dwyer v Commissioner of An Garda Síochána [2020] IESC 4 (24 February 2020), where the Supreme Court referred several questions to the CJEU. Case C-140/20 GD v Commissioner of An Garda Síochána is still pending. Meanwhile, the continued reliance by the Gardaí (the police) on the 2011 Act has meant that, in high profile prosecutions, lawyers continue to clash over whether or not traffic data is admissible.
6. Hades, or Advice for Law Firms
In the Odyssey, Circe advises Odysseus to go down to Hades, the land of the dead, for advice; in Ulysses, as the funeral proceeds from Sandymount to Glasnevin, Bloom mediates on birth, death and human frailty. Such things often lead to the need for lawyers (insert joke here about lawyers’ officers equalling Hades, or lawyers being devils). Law firms are beginning to consider post-pandemic work arrangements. Global law firm Baker McKenzie is considering a ‘2-2-1? approach that could see employees work from the office for two days a week, two from home, and one from either location. This is likely to prove popular, if a recent Irish survey is anything to go by; it found that more than 95 per cent of working people in Ireland want to continue with some form of remote employment once the coronavirus pandemic ends. It will be interesting to see how Irish law firms respond.
7. Aeolus, or All the News That’s Fit to Print?
In the Odyssey, Aeolus, the warden of the winds, seeks to help Odysseus; in Ulysses, at the offices of the newspaper The Freeman’s Journal, Bloom and Stephen meet for the first time in the novel, after which Bloom wanders off to the National Library. Online news sites are increasingly undermining newspapers, which is why the controversial DSM Directive provides in Article 15 for the protection of press publications in respect of their online use by information society service providers.
8. Lestrygonians, or the Protection of Workplace Rights
In the Odyssey, Odysseus and his crew are lucky to escape the island of the Lestrygonians, a tribe of giant cannibals; in Ulysses, Bloom continues to wander and ponder (especially about his wife’s lovers) and has lunch in Davy Byrne’s pub, near Trinity, which is still there. Earlier this week, in Melike v Turkey 35786/19 (15 June 2021) the European Court of Human Rights held, unanimously, held that the dismissal of an employee at the Ministry of National Education, for having clicked “Like” on various Facebook articles posted by a third party and critical of the education system, infringed Article 10 of the European Convention on Human Rights. And the Supreme Court will give judgment on Friday on the State’s appeal against a far-reaching finding that a law under which minimum pay and conditions are set within the building sector is unconstitutional.
9. Scylla & Charybdis, or Free Speech in Canada, or Not?
In the Odyssey, Odysseus and his crew are faced with passing between the six-headed monster Scylla and the whirling maelstrom Charybdis; in Ulysses, in the office of the director of the National Library, Stephen and various intellectuals discuss Shakespeare. Copyright exceptions in COIPLPA in favour of institutions like the National Library have yet to be properly implemented in Ireland. Neither has the DSM Directive. Canada is looking at reforming the copyright term; but that pales into insignificance beside the breadth of Bill C-10 referred to in Chapter 3 above. Even then, that’s not enough for some; there have been calls this week that Canada needs a tough online hate speech law now.
10. Wandering Rocks, or the Protection of Consumer Rights
In the Odyssey, Circe warns Odysseus not to go by this route; in Ulysses, this chapter comprises 18 mini-episodes with a cast of thousands – in section 10, Bloom peruses a pornographic novel at a book-cart (and therefore see Chapter 3 again). At least Bloom is a satisfied customer in this incident; not every consumer is so lucky, especially given the dramatic rise in online scams during pandemic. One of the protections online is provided by the various data protection authorities (DPAs) in the EU (in Ireland, that’s the Data Protection Commission (DPC)), and the CJEU yesterday expanded the powers of such DPAs in cross-border cases (see Case C-645/19 Facebook Ireland (CJEU, Grand Chamber, 15 June 2021)). Whilst it’s good news for consumers, it may be problematic for others; as Lorna Woods notes:
The significance of this comes down to the concerns about the effectiveness of the DPC (especially bearing in mind the size of the companies under the DPC’s jurisdiction). Against this background, the judgment will probably be welcomed by privacy advocates. Whether it is equally good from the perspective of data controllers, at least those based in Ireland, seems far less likely. What is potentially problematic from the perspective of the data controller is the greater unpredictability of the data protection regime. This may be less about fragmenting standards (especially if the decision is referred to the EDPB) but about where enforcement actions may start; this agenda may not rest entirely in the hands of the lead authority.
11. Sirens, or The Good, the Bad and the Jury
In the Odyssey, Circe warns Odysseus that the song of the Sirens could “sing a man’s mind away”; in Ulysses, the setting is the Concert Room saloon at the Ormond Hotel. The Minister for Justice has obtained government approval to renew the laws underpinning the non-jury Special Criminal Court – though, in Northern Ireland, Ministers hope that a recent similar renewal will be the last. And, as society opens up after COVID, jury trials have recently – and very carefully – resumed.
12. Cyclops, or Short-sighted Irish Insularity
In the Odyssey, the Cyclops is one-eyed loutish giant; in Ulysses, in Barney Kiernan’s pub, the Citizen speaks against the unwanted presence of “strangers” in Ireland, plainly belittling Bloom, who regards himself as Irish, having been born in Ireland, but responds ineffectually. Nationalism, anti-semitism and religion are among the many themes explored in the book. Moreover, a century later, little has changed; there are still those in Ireland who are short-sighted and insular (see Chapter 18) but I don’t want to give them clicks or traffic, so I’m not going to link to them here. Instead, I’ll direct you to the good work of the Irish Network Against Racism (INAR) is a national network of anti-racism civil society organisations which aims to work collectively to highlight and address the issue of racism in Ireland.
13. Nausicaa, or Immodesty and Indecency
In the Odyssey, Odysseus seeks the help Princess Nausicaa and her maids who have come to the river to do their laundry; in Ulysses, Bloom is now on the same Sandymount Strand where Stephen had walked earlier in the day; sitting a little apart from Cissy Caffrey and Edy Boardman, Gerty MacDowell puts on a show of immodesty which excites Bloom. No wonder Ireland was shocked by the novel. Indeed, the Constitution adopted 33 years later, and which is still in force today, contains on its face the injunction that indecency is an offence punishable by law, a provision which is still in place, even if the accompanying prohibition of blasphemy has been repealed by the thirty-seventh amendment to the Constitution.
14. Oxen of the Sun, or Of Health and Brothels
In the Odyssey, Odysseus’s men misguidedly kill and eat the divine oxen on the island of the sun; in Ulysses, Bloom visits Mrs Purefoy in the National Maternity Hospital (which can still be found on Holles Street, Dublin), and he and Stephen head for the red light district. UK government plans to harvest patient data from GPs are proving controversial.
15. Circe, or Of Film and Football
In the Odyssey, Odysseus confronts the sorceress Circe, protected by a herb given to him by Hermes, and frees his men; in Ulysses, both Stephen and Bloom fetch up at Bella Cohen’s Brothel, in Nighttown, where Bloom’s hallucinations encompass a protracted Kafkaesque trial and ritual sado-masochistic humiliations (again, see Beijing, Chapter 14). The movie Kafka is rather more successfully atmospheric than the movie Bloom. More baroque even than Kafka’s and Joyce’s imaginings is modern football’s (or soccer’s) offside rule, especially as interpreted by the Video Assistant Referee. My previous post was written during the Euro 2008 football tournament, and this one is being written during the postponed 2020 tournament. FIFA has recently launched the second edition of its Diploma in Football Law.
16. Eumaeus, or Why are there so few Academic Bloggers?
In the Odyssey, Odysseus returns home to find his home besieged, which, reunited with Telemachus, he plots to free; in Ulysses, Bloom and Stephen walk from Nighttown to a Cabman’s shelter west of the Custom House where they drink coffee and chat with a sailor, and Bloom expostulates to a prostitute on the perils of vice. (Yet again, consider Beijing, Chapter 14). It is no exaggeration to say that Ulysses has spawned an entire academic industry that is showing every sign of redoubling, but very little of it is in blogs. Here is a list of Irish law bloggers, and here is a list of American blawgers.
17. Ithaca, or the Protection of Liberty
In the Odyssey, Odysseus, disguised as a beggar, enters his house and slaughters Penelope’s suitors; in Ulysses, Bloom, having forgotten his key, has to climb the railing and get in via the back door, has tea with Stephen, and eventually joins Molly in bed. Cornell University is located in Ithaca, New York; and its Law School hosts the wonderful Legal Information Institute, which is a marvellous information resource, including a site of US Supreme Court decisions. While we wait for end-of-term blockbusters, the most consequential decision of that court this year so far is Van Buren v US (3 June 2021), in which the Court gave a narrow reading to the Computer Fraud and Abuse Act of 1986 (CFAA), which is likely to have an impact on other CFAA cases, such as the web-scraping case returned from the Supreme Court to the 9th Circuit.
18. Penelope, or on the Merits of Yes and No
In the Odyssey, Odysseus is ultimately reunited with Penelope; in Ulysses, the final chapter comprises Molly Bloom’s famous monologue, structured by eight sprawling and incomplete sentences, woven around repetitions of the word “yes”. Carol Rumens’s poem of the week this week is “My Mother says No on Bloomsday” by Mary O’Donnell.
Bonus Link: Finally, for those of you who are still here, to mark the day that’s in it, the Department of Foreign Affairs and the Museum of Literature Ireland have partnered to produce the short movie Opening Ulysses, created with 40 Irish Embassies and Consulates worldwide: