cearta.ie – Page 14 – the Irish for rights

Copyright reform is under consideration in many jurisdictions, including Australia, Canada, New Zealand, Singapore, South Africa, and the United Kingdom. It has just been completed in the EU. In Ireland, the long-awaited Copyright and Other Intellectual Property Law Provisions Act 2019 (here and here) was signed by the President on 26 June 2019 last; in an unexplained delay, it took until 26 November 2019 for the Minister for Business, Enterprise and Innovation, Heather Humphries, to specify 2 December 2019 as the day on which most of the Act – eventually – came into force. In a future post, I will blog about the important changes made by the Act; in this post, I want to mention a road not taken. In May 2011, the Government established a Copyright Review Committee (CRC) to identify any areas of Irish copyright legislation that might create barriers to innovation and to make recommendations to resolve any problems identified.

In particular, one of the terms of reference required the CRC to “examine the US style ‘fair use’ doctrine to see if it would be appropriate in an Irish/EU context”. It was a controversial topic, with powerful views expressed both for and against the exception.…

The Government’s plans for a digital safety commissioner proceed apace

21 November, 2019

| 1 Comment

| Cyberlaw, Cyberlaw

In my earlier post (republished here) on the demise of the UK’s current age-verification plans for online porn – and what that might mean for Ireland’s proposed Digital Safety Commissioner, I noted that long-standing Irish Government policy is to establish such a Commissioner, and that the current timetable is that it is intended to bring forward the necessary legislation before the end of the year. Meanwhile, two Private Members Bills, the Digital Safety Commissioner Bill 2017 and the Children’s Digital Protection Bill 2018, are currently before the Oireachtas.

It seems that Government policy in this regard proceeds apace. In his evidence to the International Grand Committee on Disinformation and ‘Fake News’ (hosted in the Seanad Chamber by the Joint Oireachtas Committee on Communications, Climate Action and Environment) on Thursday, 7 November 2019, last, the Minister for Communications, Climate Action and Environment, Richard Bruton TD, said:

The regulation of harmful online content … is being pursued by my Department. … The approach we are taking to online safety, for which I am directly responsible, is not dissimilar to that being taken in Australia. We propose to define harmful content, require companies to have a code of practice and put an online safety commissioner in place to oversee the delivery of those codes of practice.

…

Hallowe’en special: the Stambovsky v Ackley “Haunted House on the Hudson” is for sale!

31 October, 201931 October, 2019

| 3 Comments

| Contract

1 Laveta Place, Nyack, NY 10960, via Google Streetview (element) Pictured left is 1 Laveta Place, Nyack, New York, NY 10960, a charming riverfront home at the end of a pretty tree-lined cul de sac in an historic village north of New York city. It has recently been put up for sale (realtor; more information). Even accounting for the almost $2m price tag, this would be an unexceptionable sale of a circa-1890 Queen Anne Victorian with panoramic views over the Hudson River, were it not for the property’s central role in Stambovsky v Ackley 572 NYS 2d 672 (NY App Div 1991) (pdf) (blogged here). It has five bedrooms, four bathrooms … and three poltergeists – but when its owner, Helen Ackley, put it up for sale in 1989, she failed to tell buyer Jeffrey Stambovsky about that last detail. The story of the house is extensively told here and here; the defendant, Helen Ackley, is pictured here; and, in an article entitled “Our Haunted House on the Hudson” in the Reader’s Digest for May 1977 (extracted here), she described her family’s experiences of hauntings in the house. Given that she had sought this notoriety, when she later came to sell the house to Stambovsky, she was precluded from denying that it was haunted; and, in the words of Rubin J for the majority in the Appellate Division of the Supreme Court of New York (in a ghost-pun-laden decision), it followed that “as a matter of law, the house is haunted” (there is legal analysis here and here).…

The demise of the UK’s current age-verification plans for online porn – and what that might mean for Ireland’s proposed Digital Safety Commissioner — updated

18 October, 201921 November, 2019

| 2 Comments

| Cyberlaw

Earlier this week, in a written statement to the House of Commons, the UK’s Secretary of State for Digital, Culture, Media and Sport, the Rt Hon Nicky Morgan MP, announced the end of the UK’s controversial age-verification plans for online porn.

Part 3 of the Digital Economy Act 2017 ((hereafter: DEA), as given further effect by the Online Pornography (Commercial Basis) Regulations 2019 (SI No 23 of 2019)) seeks to regulate online pornography. Section 14 DEA imposes a requirement on pornography websites to prevent access to by persons under 18; section 16 DEA permits the designation of an age-verification regulator (AVR); and, pursuant to the procedure in section 17 DEA, the Secretary of State for Digital, Culture, Media & Sport announced in the House of Commons on 20 February 2018 that the British Board of Film Classification (BBFC) was designated as the AVR.

Pursuant to section 25 DEA, the AVR published Guidance on Age-verification Arrangements (pdf) in October 2018, and this was approved by the House of Commons on 17 December 2018. At this point, the EU Commission should have been notified, pursuant to Articles 4 and 5 of Directive (EU) 2015/1535, which lays down a procedure for the provision of information to the Commission to ensure as much transparency as possible as regards national initiatives for the establishment of technical regulations and of rules on Information Society services.…

Another butterfly-effect banking typo, another mistaken overpayment, another example of restitution for unjust enrichment

17 October, 201931 December, 2019

| 3 Comments

| Mistaken payments, Restitution

In 2016, Fife was said to be the happiest place to live in Scotland, at least according to the Bank of Scotland Happiness Index. But it may not be quite so happy for a man who was recently overpaid nearly £300,000 by Fife Council and now has to pay it back (that’s Fife House, North Street, Glenrothes, Fife, Scotland, the seat of Fife Council, in the picture). According to Irish Legal News yesterday (also here and here):

Fife Council, in Scotland, was supposed to pay the man £59.95 a week, but accidentally paid £59,395 per week instead – and didn’t notice until around £297,000 was paid out. … Most of the cash has been recovered and a repayment plan has been put in place to recover the remaining sum, around £12,000.

It was a monumental banking blunder from an administrative worker at the council who made a “keying error“. This resulted in five massive weekly overpayments during July and August, before council officials discovered the error. This is a spectacular example of a butterfly-effect typo; and Irish Legal News has another example today: a judge calculating a half-billion dollar damages award typed $107 million rather than $107 thousand into his calculator.…

Registration is open for the Irish Supreme Court Review conference, 12 October 2019, TCD

2 October, 20192 October, 2019

| No Comments

| Conferences, Lectures, Papers and Workshops

The Irish Supreme Court Review (ISCR), hosted by the School of Law, Trinity College Dublin, and sponsored by Pinsent Masons, is a forum for in-depth analysis of the functions and jurisprudence of the Supreme Court of Ireland.

The second annual ISCR conference will be held on Saturday 12 October 2018 in Trinity College Dublin.

All are welcome to attend; the fee (inclusive of materials, tea & coffee breaks, and light lunch) is €35.00, or €15:00 (concession for students, pensioners and the unwaged); and registration is essential (via here or here).

SCHEDULE

09:00 Registration: Edmund Burke Lecture Theatre, Room 1008, Arts Building, Trinity College Dublin (map)

09:30 Keynote: Chair: Mark Bell (Regius Professor of Law, and Head of the School of Law, Trinity College Dublin)

Imelda Maher (Sutherland Professor of European Law, and Dean of Law, University College Dublin) “The Supreme Court’s Treatment of EU Law”

10:30 Tea & coffee

11:00 Panel 1: Chair: Mary Finlay Geoghegan (Judge of the Supreme Court, 2017 to 2019)

Noel McGrath (University College Dublin) ACC Loan Management v Rickard [2019] IESC 29 (09 May 2019)

Fiona de Londras (University of Birmingham) P v Minister for Justice and Equality [2019] IESC 47 (31 May 2019)

Des Ryan (Trinity College Dublin) Nano Nagle School v Daly [2019] IESC 63 (31 July 2019)

Áine Ryall (University College Cork) Data Centres, Masterplans and Environmental Assessment Obligations: Fitzpatrick v An Bord Pleanála [2018] IESC 60 (05 December 2018) and [2019] IESC 23 (11 April 2019)

12:30 Light Lunch

13:30 Panel 2: Chair: Iseult O’Malley (Judge of the Supreme Court)

Liz Heffernan (Trinity College Dublin) Statutory Presumptions Affecting the Burden of Proof: Director of Public Prosecutions v Forsey [2018] IESC 55 (08 November 2018)

Mark Coen (University College Dublin Sweeney v Ireland [2019] IESC 39 (28 May 2019)

David Prendergast (Trinity College Dublin) Director of Public Prosecutions v Brown [2018] IESC 67 (21 December 2018)

14:45 Tea & coffee

15:00 Panel 3: Chair: to be confirmed

Fergus Ryan (Maynooth University) P v Judges of the Circuit Court [2019] IESC 26 (30 April 2019)

Brian Murray SC (Law Library, Dublin) Kerins v McGuinness [2019] IESC 11 (27 February 2019), O’Brien v Clerk of Dáil Éireann [2019] IESC 12 (05 March 2019), and Kerins v McGuinness [2019] IESC 42 (29 May 2019)

The legal basis of the US$170m fine on Google for YouTube’s infringement of children’s privacy

10 September, 2019

| No Comments

| GDPR, Privacy

FTC NYAG Google YouTube logos

At the end of last week, the media was full of stories that Google had been “Fined $170 Million for Violating Children’s Privacy on YouTube” (that’s a headline from the New York Times; see also, for example, NPR | BBC | RTÉ | Silicon Republic). In this post, I want to sketch the legal background to, and consequences of, this fine; and, at the end, I will say a few words about the equivalent position in Europe.

In the US, the Children’s Online Privacy Protection Act of 1998 (15 USC §§ 6501–6506; hereafter: COPPA), and the Children’s Online Privacy Protection Rule (16 CFR § 312; hereafter: the COPPA Rule) made under it, regulate unfair and deceptive acts and practices in connection with the collection and use of personal information from and about children on the internet. In particular, 15 USC §§ 6502(b)(A) COPPA, and 16 CFR § 312.3 COPPA Rule, require the operator of any website or online service directed to children that collects personal information from children, or the operator of a website or online service that has actual knowledge that it is collecting personal information from a child,

(i) to provide notice on the website of what information is collected from children by the operator, how the operator uses such information, and the operator’s disclosure practices for such information; and
(ii) to obtain verifiable parental consent for the collection, use, or disclosure of personal information from children; …

Giving further effect to the second paragraph here, 16 CFR § 312.5(b)(1) COPPA Rule provides

An operator must make reasonable efforts to obtain verifiable parental consent, taking into consideration available technology.

…