Author: Eoin

Dr Eoin O'Dell is a Fellow and Associate Professor of Law at Trinity College Dublin.

Mistaken payments and criminal liability – a cautionary tale from South Africa

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| Mistaken payments, Restitution, Restitution

I have warned many times on this blog (especially here, here, here, here, here, here, here, and here – with examples from Ireland, the UK, Australia, New Zealand, and the US) that the recipient of a mistaken payment not only has a duty to make restitution of that unjust enrichment but also faces potential criminal liability for theft if the payment is kept (and, worse, spent) rather than returned. A recent cause célèbre from South Africa provides another cautionary tale:

Sibongile Mani sentenced to 5 years’ imprisonment for theft of NSFAS funds

Sibongile ManiWalter Sisulu University (WSU) student Sibongile Mani [left] has been sentenced to five years’ imprisonment for theft relating to R14 million [€870,000] accidentally credited to her account by the National Student Financial Aid Scheme (NSFAS) in 2017.

East London Regional Court Magistrate Twanette Olivier found Mani guilty of stealing R818,000 [€51,000] of the funds.

She was only entitled to a R1,400 [€87] food allowance and was accused of failing to report when R14 million [€870,000] was credited to her account erroneously. She instead embarked on a spending spree. …

A little more background:

Key events that led up to the sentencing and appeal of NSFAS ‘millionaire’ Sibongile Mani

…
June 2017
A technical glitch led to funding administrative company Intellimali erroneously transferring R14m into Mani’s account.

…

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Frances Haugen, Facebook whistle-blower, in conversation with Jess Kelly, tech correspondent with Newstalk fm, in the Long Room Hub, Trinity College Dublin, at 5pm on Monday 21 March 2022

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| Conferences, Lectures, Papers and Workshops

Frances Haugen banner
Frances Haugen, Facebook whistle-blower, will be in conversation with Jess Kelly, tech correspondent with Newstalk fm, on Monday, 21 March 2022, 5–6pm, in the Neill Lecture Theatre, Trinity Long Room Hub Arts & Humanities Research Institute, Trinity College Dublin (map here).

About the Conversation

Facebook; via HubFrances Haugen is a data engineer, and formerly a product manager with Facebook. In 2021, she disclosed tens of thousands of Facebook’s internal documents to the US Securities and Exchange Commission, and these documents formed the basis of the Wall Street Journal‘s Facebook Files investigation. In October 2021, she told the US Congress that Meta’s “leadership know how to make Facebook and Instagram safer, but won’t make the necessary changes because they have put their astronomical profits before people”. She has testified to the US Congress, the European Parliament, the UK Parliament, and the Oireachtas, that government regulation of Meta is increasingly necessary.

In her conversation with Jess Kelly, tech correspondent with Newstalk fm, Frances will discuss what changes Meta can make, and what regulations legislators can introduce, to make platforms safer.

PLEASE BOOK HERE. Numbers are limited, so registration is essential.…

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Convenience as consideration? Payment for good consideration as a defence to a claim to restitution for unjust enrichment

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| Restitution, Restitution

Red light sign in FloridaIn Barclays Bank Limited v Simms [1980] QB 679, 695, Goff J held that a claim for restitution on the grounds of mistake would fail, inter alia, if

the payment is made for good consideration, in particular if the money is paid to discharge and does discharge a debt owed to the payee (or a principal on whose behalf he is authorised to receive the payment) by the payer or by a third party by whom he is authorised to discharge the debt … [emphasis added]

We have already seen an interesting US case of the particular example of the three party case [update: the appeal is noted here]. Now comes news of an interesting US case of the italicised general example of payment made for good consideration.

In Pincus v American Traffic Solutions, Inc, Pincus was photographed going through a red light (similar to the one in the photo, right), and he paid a penalty to American Traffic Solutions, Inc (ATS), made up of the statutory penalty and an additional fee for the convenience of paying online rather than by mail. He brought a putative class action (pdf) against ATS in Federal Court, alleging that several Florida statutes barred ATS from charging the convenience fee and that ATS was unjustly enriched by retaining it.…

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Defamation reform will go to Cabinet tomorrow – and it will include anti-SLAPP provisions! — Updated: it’s been postponed by a week

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| 2016-17 Reform, Defamation, Defamation, Libel tourism

Helen McEntee (27 June 2020) via flickrBy way of update to my previous post wondering whether we will see Cabinet approve the drafting of a Defamation (Amendment) Bill before the end of the month, it seems increasingly likely that the answer is: yes, we will, and may even see it tomorrow. Both Mark Tighe in yesterday’s Sunday Times (sub req’d), and Jennifer Bray in today’s Irish Times, report that Minister for Justice, Helen McEntee (pictured right) will bring a package of proposals for reform of Ireland’s defamation laws to Cabinet tomorrow. Shane Phelan has a similar report in the Sunday Independent; and Elaine Loughlin has a similar report in the Irish Examiner.

This week’s reports are similar to those of Hugh O’Connell in the Sunday Independent a week ago as noted in my previous post, with one very important addition. The proposed reforms follow on from a statutory review of the operation of the Defamation Act 2009 (also here) that was probably completed in 2020 but has yet to be published; and, in my post on O’Connell’s report, I commented that if the review had recommended provisions to control strategic lawsuits against public participation (SLAPPs), I would have expected O’Connell to have said so.…

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Will we see Cabinet approve the drafting of a Defamation (Amendment) Bill before the end of the month?

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| 2016-17 Reform, Defamation, Defamation

DefamationA report by Hugh O’Connell in yesterday’s Sunday Independent suggests that the answer to the question in the title of this post is: yes, we may very well see Cabinet approve the drafting of a Defamation (Amendment) Bill before the end of the month. He reports that the Minister for Justice, Helen McEntee, will bring to Cabinet the outcome of a statutory review (including a stakeholder symposium) of the operation of the Defamation Act 2009 (also here) and a general scheme of the Heads of a Defamation (Amendment) Bill 2022 based on the review’s recommendations. This is exciting news, but I’m not going to get too carried away, because we have been here many times before. Last March, on this blog, I bemoaned the many false dawns in Irish defamation law reform. Then, in July, I posed the question “Who will come first, Godot, or an Irish Minister for Justice bearing defamation reform?”. So far, we’ve seen neither; but O’Connell’s report suggests we might just soon see the latter.

The Defamation Act 2009 had been signed by the President on 23 July 2009, and it came into force on 1 January 2010. Section 5 (also here) requires the Minister to commence a review of the operation of the Act “not later than 5 years after the passing of this Act”, and to complete that review within a year.…

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Taking the Santa out of Santander for £130m; putting the Santa into Citibank for $500m; and Fraiser’s Dad’s road to perdition – restitution of mistaken payments, again; and the defence of bona fide purchase

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| Mistaken payments, Restitution

Santa-nder: Santa carrying a sack branded SantanderBanks are more often cast in the role of Scrooge than Santa; and, even when they start out in the latter role, they end up in the former.

For example, where over-active ATMs played Santa and permitted withdrawals of amounts greater than available funds or credit, the bank quickly became Scrooge, insisting that all money withdrawn by customers in excess of their balances will have to be repaid. Unlike in monopoly, you cannot retain the proceeds of a bank error in your favour. It’s not a gift either from God or from the bank. As I have explained many times on this blog, this is a mistaken payment, and the recipient must return it, unless there is a defence. And, if it is not returned, it could constitute theft.

Just before Christmas, Santander bank found itself first as Santa and then as Scrooge:

Bank accidentally deposits $176 million into people’s accounts on Christmas Day

Thousands of people received a surprise gift on Christmas Day this year when European bank Santander accidentally deposited £130 million ($176 million) across 75,000 transactions.

The mistake happened when payments from 2,000 business accounts in the U.K. were processed twice, meaning some employees saw their wages double, while suppliers also got more than they were expecting.

…

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Columba’s 1,500th birthday is a good day to note that Ireland has implemented the DSM Directive, (almost) the whole DSM Directive, and nothing but the DSM Directive

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| COIPLPA, Columba, Copyright, CRC12 / CRC13, Digital deposit, Fair use

St Columba and Copyright (cropped and modified Flickr image)Happy birthday, St Columba
Today is the birthday, 1,500 years ago, in 521, of a celtic saint variously called Columba or Colmcille (pictured left). He founded many monasteries, including those in Kells, Ireland, and Iona, Scotland, where the Book of Kells was written. A tale about him forms an important part of Irish copyright lore. It is, therefore, an auspicious day on which to note that there has recently been an important development in Irish copyright law: the EU’s DSM Directive has recently been implemented into Irish law (see the European Union (Copyright and Related Rights in the Digital Single Market) Regulations 2021 (SI No 567 of 2021) (also here) (SI 567) implementing 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 (Text with EEA relevance) (OJ L 130, 17.5.2019, p. 92–125) (DSM)).

In the foreword to her magisterial Copyright in the Digital Single Market. Article-by-Article Commentary to the Provisions of Directive 2019/790 (OUP, 2021) Eleonora Rosati points out that this year is the 30th anniversary of the first harmonizing Directive in the broad copyright field and (Software Directive) and the 20th anniversary of the most significant Directive in that field (InfoSoc Directive).…

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Seán Quinn, the Streisand Effect, and improving the operation of the right to be forgotten – updated

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| GDPR, Right to be Forgotten

Google search RtbF notice

I have just conducted a search on a popular search engine for “Seán Quinn”, and the above message – that Some results may have been removed under data protection law in Europe – appears at the bottom of each page of results. Over the past weekend, there was widespread media coverage of attempts by Seán Quinn to rely on the EU’s right to be forgotten to remove newspaper articles from search listings that highlighted significant aspects of his bankruptcy and of his family’s lavish pre-bankruptcy lifestyle. This attempt at reputation management backfired spectacularly on him, and stands as an example of the Streisand effect, which is:

… a phenomenon that occurs when an attempt to hide, remove, or censor information has the unintended consequence of increasing awareness of that information, often via the Internet. It is named after American singer Barbra Streisand, whose attempt to suppress the California Coastal Records Project photograph of her residence in Malibu, California, taken to document California coastal erosion, inadvertently drew greater attention to it in 2003.

On Saturday, in the Irish Independent, Shane Phelan published the following story:

Revealed: Quinn family succeeds in campaign to erase press coverage of lavish lifestyle

Google delists dozens of articles on court battles and even €100,000 wedding cake

Members of ex-billionaire Seán Quinn’s family have mounted a successful campaign to have press coverage about their past ‘forgotten’ by Google.

…

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