Eoin – Page 6 – cearta.ie

Of Schrödinger’s contract and ambiguous terms: when a website mistakenly lists designer trainers for €10, do their ambiguous terms and conditions apply?

5 September, 2022

In the famous thought experiment proposed by Erwin Schrödinger, a hypothetical cat in a box may be considered simultaneously to be both alive and dead as a result of its fate being linked to a random subatomic event that may or may not have occurred. For reasons that will become obvious a little later in this post, I was reminded of this as I pondered an article by Conor Pope in the Irish Times last week, in which he reported that the upmarket Irish retail store Brown Thomas [BTs] cancelled online orders after it had mis-priced designer trainers at €10 instead of the usual €150. This is a common scenario. To take only two examples, in 2010, Arnotts, which is now part of the BT group, offered an online deal for €98 televisions which also turned out to be too good to be true; and, earlier this year, Morrison’s supermarket website mistakenly listed premium whisky for £2.50. In any event, this is how BTs responded on twitter to their mistaken overpricing:

To our customers, please note we experienced a pricing error on our website this morning. Orders sold at an incorrect price will be cancelled as per our terms and conditions.

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Some of #RushdiesWords on free speech from Joseph Anton

12 August, 2022

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| Censorship, Censorship, Freedom of Expression, Freedom of Expression

Joseph Anton. A Memoir (London, 2012) (cover left) is a memoir by Salman Rushdie.

On Valentine’s Day, 14 February 1989, Ayatollah Ruhollah Khomeini, the Supreme Leader of Iran, issued a legal edict (a fatwa) against Rushdie on the grounds that his novel The Satanic Verses (London, 1988) blasphemed against the Prophet Muhammad. Rushdie spent several years in hiding, using the pseudonym Joseph Anton (a name he chose to honour the writers Joseph Conrad and Anton Chekhov). Joseph Anton. A Memoir is his account of his life in hiding; but it is described as a memoir rather than autobiography because it is written in the third (rather than the first) person.

In the Autumn of 1989, he was invited by the Institute of Contemporary Arts (ICA) in London to deliver the 1990 Herbert Reade Memorial Lecture. Joseph Anton takes up the story:

He knew at once that he wanted to write about iconoclasm, to say that in an open society no ideas or beliefs could be ring-fenced or given immunity from challenges of all sorts, philosophical, satirical, profound, superficial, gleeful, irreverent or smart. All liberty required was that the space for discourse itself be protected.

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Some practical perspective on the recovery of misdirected payments

2 August, 20222 August, 2022

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| Mistake, Mistaken payments, Restitution

I’ve written quite a bit on this blog about payors’ rights to recover mistaken payments from recipients. However, a column in today’s Irish Times makes an important practical point about it. A client of bank who had sought to make a payment of €20,000 into his daughter’s account in a different bank. He had the right details, but the payment never arrived in his daughter’s account. Dominic Coyle dispensed his usual sage, common sense, advice, and the banks are now being helpful, so the enquirer and his daughter will probably track down the money. Meanwhile, Dominic added, almost en passant:

By the way, not that it is relevant here, in cases where there has been an Iban error on the part of the person making the payment, repayment will be requested from the inadvertent recipient. However, I am told, somewhat surprisingly, that that depends on the recipient agreeing to the repatriation of the funds. Otherwise you’re apparently looking at legal action which could make your €20,000 look like chips.

So, he’s right that, where there is a mistake, the recipient of the mistaken payment must make restitution of the mistaken payment. However, he’s also right that, if the matter has to be vindicated in court, the costs could be prohibitive (even if, in principle, the costs should follow the event, so that the plaintiff would recover the mistaken payment and also be entitled to costs).…

It’s good to TalkTalk – Part 2: negligence claims for data breaches

18 July, 202225 July, 2022

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| Data Protection, Privacy, Privacy, Tort

1. Introduction

Two recent cases demonstrate two very different privacy issues arising out data breaches suffered by the telecommunications company TalkTalk in 2014 and 2015. Smith v TalkTalk Telecom Group plc [2022] EWHC 1311 (QB) (27 May 2022) concerned claims for damages for both breaches; whilst Sterritt v Telegraph Media Group Ltd [2022] NIQB 43 (09 June 2022) concerned the privacy of one of the hackers involved in the second breach. In my previous post, I looked at the limits of claims for misuse of private information for both breaches in Smith. In this post, I want to look at Smith (again) and at Sterritt, to consider the limits of a claim in negligence in such cases.

2. Negligence claims in Smith

The main problem in Smith is that TalkTalk did not take steps to secure the data involved in the 2014 breach and the 2015 hack. This sounds like a failure to take reasonable care. But a negligence claim in such circumstances was not pleaded, as it was probably precluded by authority.

In Swinney v Chief Constable of Northumbria Police Force [1997] QB 464, [1996] EWCA Civ 1322 (22 March 1996), the plaintiff saw a car which had hit and killed a police officer, and provided that information to the police.…

It’s good to TalkTalk – Part 1: misuse of private information claims for data breaches

15 July, 202218 July, 2022

| 6 Comments

| Data Protection, Privacy, Privacy

1. Introduction

Two recent cases demonstrate two very different privacy issues arising out data breaches suffered by the telecommunications company TalkTalk in 2014 and 2015. Smith v TalkTalk Telecom Group plc [2022] EWHC 1311 (QB) (27 May 2022) concerned claims for damages for both breaches; whilst Sterritt v Telegraph Media Group Ltd [2022] NIQB 43 (09 June 2022) concerned the privacy of one of the hackers involved in the second breach. In this post, I want to look at the limits of claims for misuse of private information for both breaches in Smith. In the next post, I will look at Smith (again) and at Sterritt, to consider the limits of a claim in negligence in such cases.

2. Smith and the 2014 TalkTalk breach: no misuse of private information

In Smith v TalkTalk Telecom Group plc [2022] EWHC 1311 (QB) (27 May 2022) (noted on Panopticon), in September 2014, TalkTalk customers began to receive scam calls purporting to be from TalkTalk, which were ultimately traced to data obtained by users of Wipro, a third party providing network services to TalkTalk. However, Wipro put no adequate controls in place to prevent unauthorised access by its users to the data supplied by TalkTalk.…

Political expression, autonomous communication, and anti-social behaviour orders: a note on Tallon v DPP [2022] IEHC 322 (31 May 2022)

7 July, 202225 October, 2022

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| Freedom of Expression, Freedom of Expression, Irish cases

1. Introduction

The decision of Phelan J in Tallon v Director of Public Prosecutions [2022] IEHC 322 (31 May 2022) is a recent and important judgment on the scope of the free speech rights protected by Article 40.6.1(i) and Article 40.3.1 of the Constitution. It concerns the extent to which an anti-social behaviour order imposed pursuant to section 115(1) of the the Criminal Justice Act, 2006 (also here) can permissibly restrain constitutional free speech rights.

2. Free speech rights in the Irish Constitution

2.1 The freedom of political expression
The right “to express freely … convictions and opinions” contained in Article 40.6.1(i) of the Constitution is now understood, broadly speaking, as a freedom of political expression, concerned with the public activities of citizens in a democratic society (see Murphy v Irish Radio and Television Commission [1999] 1 IR 12, 24, [1998] 2 ILRM 360, 372, (28 May 1998) [37]-[44] (doc | pdf) (Barrington J; Hamilton CJ, O’Flaherty, Denham, and Keane JJ concurring) building on Irish Times v Ireland [1998] 1 IR 359, [1998] 2 ILRM 161 (2 April 1998) (doc | pdf) (Barrington J)). And, in Dunnes Stores v Ryan [2002] IEHC 61 (5 June 2002), Kearns J in the High Court struck down section 19(6) of the Companies Act, 1990 (also here), which required a company to provide an explanation or make a statement to an officer making inquiries about the company, on the grounds, inter alia, that it infringed the right to silence implied into Article 40.6.1(i) (a right now being relocated to Article 38.1 of the Constitution insofar as it relates to the fairness of the trial process; see Director of Public Prosecutions v M [2018] 1 IR 810, [2018] IESC 21 (21 March 2018) [37] O’Malley J (Clarke CJ and O’Donnell, Dunne and Charleton JJ concurring); Sweeney v Ireland [2019] IESC 39 (28 May 2019) [76] (Charleton J; O’Donnell, MacMenamin, Dunne and Finlay Geoghegan JJ concurring); Director of Public Prosecutions v Carroll [2021] IECA 261 (13 October 2021) [17] (Donnelly J; Edwards and McCarthy JJ concurring)).…

On the Internet, does Article 17 know you’re a dog?

5 July, 20226 July, 2022

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| Copyright

4 cartoons:

On this day in 1993, the New Yorker magazine published a cartoon by Peter Steiner. A large dark dog sits at a desk in front of a computer; a smaller white dog sits on the floor beside him; the large dog says to the small one “On the Internet, nobody knows you’re a dog”.

On 14 November 2010, the Joy of Tech blog published a cartoon by Nitrozac and Snaggy. It’s very similar to Steiner’s; but, this time, the large dog is saying to the small one “It used to be that on the Internet, nobody knew you were a dog. Now, on a social network, everybody knows you’re a bitch“.

On 12 June 2013, the Joy of Tech blog published another cartoon by Nitrozac and Snaggy. It has two panels. The left panel, headed “In the 1990’s”, is a colourized version of Steiner’s original. The right panel, headed “Now”, shows two NSA agents in a control room. One says “Our metadata analysis indicates that he is definitely a brown lab”. The other says “He lives with a white and black spotted beagle-mix, and I suspect they are humping”.

On 23 February 2015, the New Yorker published a cartoon by Kaamran Hafeez.…

The nutty wing of the Originalist camp is now in the SCOTUS ascendency – is it the death knell for tiers of scrutiny, especially in the First Amendment context?

26 June, 202225 October, 2022

| 3 Comments

| 1A, US Supreme Court

“I’m an originalist, but I’m not a nut”. This is how the Pontiff of Originalism, Justice Antonin Scalia (seated right), reportedly replied, when he was asked to compare his judicial philosophy to that of his US Supreme Court colleague, Justice Clarence Thomas (seated left). As of Thursday, Thomas J’s nutty originalism is in the ascendancy in the US Supreme Court. In New York State Rifle and Pistol Association v Bruen (23 June 2022; — US — (2022); Opinion pdf | Cornell html), the US Supreme Court held that a New York restriction on carrying firearms unconstitutionally prevented law abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense. Referring to District of Columbia v Heller 554 US 570 (2008) (pdf) (which I critiqued here) and McDonald v Chicago 561 US 742 (2010) (pdf), the Court held that, to justify a firearms regulation, the government must demonstrate that the regulation is consistent with the Nation’s historical tradition of firearms regulation; as a consequence, the Court rejected any standard of review such as strict or intermediate scrutiny (which it described as “means-end” balancing tests). The Court identified firearms regulations that were consistent with the Second Amendment’s text and historical understanding, but held that none directly or analogically justified New York’s requirement that an applicant for a license to carry firearms outside the home had to demonstrate “a special need for self-protection distinguishable from that of the general community”.…