cearta.ie – Page 125 – the Irish for rights

Perhaps rugby is replacing property as the Irish obsession du jour. There are many ways in which they overlap. For example, during the property boom, it was not uncommon for sports clubs to sell off some of their lands to developers, in return not only for the cash but also for improved facilities provided by the developers. Just such a transaction was at issue in Hannon v BQ Investments [2009] IEHC 191 (24 April 2009). A rugby club sold some of its property, and the special conditions of sale provided that the developers would grant the club a right of way over the lands being sold to access the club’s remaining property. In particular, special condition 10 provided

There will be reserved in favour of the [club] for the use of the … pitches and the clubhouse a right of way over the roadway having a width of six metres with a footpath on both sides and appropriate public lighting with the location of the said right of way to be decided upon by the [developer] who will consult with the [club] on the Planning Application with regard to the location of the said right of way.

The basic question for the court was whether the developer’s obligation to construct the road arose simply on the completion of the transfer of the property, or was in some sense conditional upon the club putting in “the … pitches and the clubhouse”.…

The liability of rescuers

27 May, 200931 May, 2009

| 3 Comments

| Irish Law, Irish Society, Restitution

The Law Reform Commission last night (pdf) launched its new Report on The Civil Liability of Good Samaritans and Volunteers (pdf), following up on its November 2007 Consultation Paper (pdf) on the issue.

The Common Law does not recognise a duty to attempt a rescue, even where the rescue would be relatively easy, and the Commission recommended against imposing one by statute. However, where a rescuer feels compelled to attempt a rescue, the Commission’s recommendations cover the duty of care owed by rescuers to those being rescued. …

Oh defamation, where is thy sting?

19 May, 200919 May, 2009

| 3 Comments

| Defamation, Irish cases, journalism

Two defamation stories from the Irish Times. The first concerns an interesting variation on the old defamtion saw, the sting of the libel:

An Irishman’s Diary

… In the Language of Flowers – a Victorian invention by which tortured lovers and the like used to send coded messages – nettles signified “cruelty” or “slander”. So in a sense, Shakespeare’s Cordelia is defaming the symbol of defamation when she lumps nettles (in King Lear Act IV) with “cuckoo flow’rs, darnel, and all the idle weeds that grow in our sustaining corn”. …

The second concerns what seems like an important development in the defence of public interest publication:

Quinn group loses action to limit ‘Tribune’ libel defence

Quinn Insurance Group has lost a High Court bid to strike out parts of the Sunday Tribune’s defence to forthcoming libel proceedings taken against it by the insurance company.

The libel action is over articles alleging the group recruited gardaí to approach solicitors to offer them bonuses on their fees to recommend reduced settlements to clients in cases against Quinn Direct.

Ms Justice Elizabeth Dunne yesterday ruled the defendants had provided adequate details of its plea of justification for the article and also sufficiently set out the nature of the public interest being relied upon to justify the article.

…

It’s not Smart, it’s unjust enrichment

12 May, 200912 May, 2009

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| Restitution

From today’s Irish Times comes news of a pending claim for restitution of unjust enrichment:

Former Smart Telecom CEO sued for sum of €1.16m

SMART YUROE Broadband (SYB) and related companies have sued former Smart Telecom chief executive Oisin Fanning for more than €1.1 million over alleged unjust enrichment during his time as chief executive.

SYB, Switchcom Ltd and Smart Telecom Holdings Ltd claim Mr Fanning received some €1.16 million in sums allegedly due to the companies for their use while he was chief executive of Smart from September 2004 to September 2006. …

The action against Mr Fanning is the latest of several sets of proceedings involving the company, Mr Fanning and others to come before the Commercial Court following the October 2006 buyout of Smart by SYB, a company controlled by businessman Brendan Murtagh.Mr Justice Peter Kelly yesterday made orders consolidating all the actions and fixed a hearing date for November 3rd next. The proceedings are expected to run for more than four weeks. …

Why protect free speech?

11 May, 200919 May, 2009

| 6 Comments

| Censorship, Freedom of Expression

Index on Censorship has published a short edited extract from Ideas That Matter: Key Concepts for the 21st Century (Weidenfeld & Nicolson, 2009) by AC Grayling, Professor of philosophy at Birkbeck College, University of London, in which he provides a compelling and pithy case in favour of free speech and against censorship:

It’s a surprise to learn how universal censorship is

While even the most tyrannical regime will pay lip service to free speech, it is a right that is constantly denied.

There are two bedrock civil liberties without which the very idea of civil liberty is empty. They are freedom of speech and due process of law. … The fundamental justifications for freedom of expression are as follows. First, it is an intrinsic right of every individual not to be forced to think, speak and believe at the dictate of others, but to do these things of their own free accord. Secondly, it is of the essence to the possession and protection of other liberties that individuals have this right. Thirdly, in the absence of the first two considerations, the full development of the human individual is vastly more difficult and in most cases not even possible, Fourthly, freedom of expression is essential to the interchange of ideas and views, and discussion of them, without which society cannot be healthy or mature.

…

Criminal libel; one faltering step forward, now two steps back

6 May, 20093 October, 2023

| 7 Comments

| criminal libel, Defamation, Defamation Bill 2006

A little more than a month ago, I wondered why legislators are so loath to repeal criminal libel provisions. However, in a subsequent post, I acknowledged that section 34 of the Defamation Bill, 2006 as introduced provided for the abolition of the common law offences of criminal libel, seditious libel and obscene libel. It now seems that I wrote too soon and that my original skepticism was justified. No sooner had my fingers left the keyboard on the second post than news came that the Bill had returned to the top of the legislative agenda. The Committee on Justice, Equality, Defence and Women’s Rights has begun the Committee Stage of the Bill. Several amendments (pdf) are being considered, almost all of which are retrenchments upon the advances made in earlier drafts of the Bill.

It seems to me that the longer it takes to enact the Bill, the more restrictive it becomes. Nowhere is this more true than in the case of criminal libel. Head 65(1) of the draft Bill appended to the Report of the Legal Advisory Group on Defamation (pdf) (disclosure: I was a member of the Group) provided for the abolition of the common law offences of criminal, blasphemous, seditious and obscene libel.…

Journalists’ source privilege: one privilege or two?

5 May, 200912 May, 2009

| 2 Comments

| Freedom of Expression, Irish cases, journalism, Journalists' sources, Supreme Court of Canada

Journalists’ source privilege is in the air. In the US, the House of Representatives has recently passed a (not particularly readable) Bill recognising a journalists’ source privilege (the Free Flow of Information Act of 2009), and it has been introduced into the Senate. In the UK, a prosecution of a local newspaper journalist and the police source who “leaked” stories to her was recently dismissed (indeed, a similar case against a member of parliament will also not proceed, though another is still pending).

On a judicial level, the Trial Chamber of the Special Court for Sierra Leone (SCCL) (pdf) (noted on the CPJ blog), relying on the earlier decision of the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in Prosecutor v Bradjanin and Talic (11 December 2002), held that a Liberian journalist did not have to divulge the names of those who facilitated his access to a war zone. In Sanoma Uitgevers BV v the Netherlands Application no 38224/03 (31 March 2009) (noted in my previous post), building on its seminal and hugely influential decision in Goodwin v UK Application no 17488/90, [1996] ECHR 16 (27 March 1996), the European Court of Human Rights (ECHR) explored the limits of such a privilege.…

The limits of the ECHR’s protection of journalists’ sources

4 May, 20096 August, 2009

| 3 Comments

| ECHR, Freedom of Expression, Journalists' sources

In my previous post, I outlined some of the international instruments which provide for the protection of journalists’ sources. The leading court decision on the issue is the judgment of the European Court of Human Rights (ECHR) in the seminal and hugely influential Goodwin v UK Application no 17488/90, [1996] ECHR 16 (27 March 1996). And in Sanoma Uitgevers BV v the Netherlands Application no 38224/03 (31 March 2009), the Court reaffirmed Goodwin but set out its limits.

Goodwin turned on the interpretation of Section 10 of the Contempt of Court Act, 1981, which provides:

No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.

In X Ltd v Morgan-Grampian (Publishers) Ltd [1991] 1 AC 1 (HL), the House of Lords held that it was “in the interests of justice” to order a trainee journalist to disclose the identity of a source. However, in Goodwin the ECHR held that this infringed the journalists’ right to freedom of expression in Article 10 of the European Convention on Human Rights.…