cearta.ie – Page 27 – the Irish for rights

1. Introduction
The decision of Binchy J in Muwema v Facebook Ireland Ltd [2016] IEHC 519 (23 August 2016) demonstrates that, on the question of the liability of internet intermediaries for defamatory posts on their platforms, an important part of the answer is provided by application of the defence of innocent publication provided in section 27 of the Defamation Act 2009 (also here).

Binchy J granted a Ugandan lawyer a Norwich Pharmacal order requiring Facebook to identify the holder of a pseudonymous account which, the lawyer alleged, contained posts that were defamatory of him. However, Binchy J declined to grant injunctions requiring Facebook either to remove allegedly defamatory posts from the account or to prevent the material in them from being re-posted, on the grounds that Facebook could rely on the defence of innocent publication in section 27 of the 2009 Act and on the hosting immunity conferred by Regulation 18 of the European Communities (Directive 2000/31/EC) Regulations 2003 (SI No 68 of 2003) (transposing Article 14 of the e-Commerce Directive Directive 2000/31/EC into Irish law).

He came to that conclusion, especially as regards section 27, with some unease, and he doubted very much if that consequence was intended by the Oireachtas ([65]).…

Internet defamation and the liability of intermediaries (Muwema v Facebook part 1)

26 September, 201618 February, 2017

| 6 Comments

| Cyberlaw, Defamation

1. Introduction
The liability of internet intermediaries for defamatory posts on their platforms was central to the decision of Binchy J in Muwema v Facebook Ireland Ltd [2016] IEHC 519 (23 August 2016). A Ugandan lawyer objected to allegedly defamatory posts on a pseudonymous Facebook account, and Binchy J gave an order requiring Facebook to identify the account-holder. However, he declined to grant injunctions requiring Facebook either to remove the posts or to prevent the material in them from being re-posted, on the grounds that Facebook could rely on the defence of innocent publication in section 27 of the Defamation Act 2009 (also here).

On the other hand, in the earlier Petroceltic International plc v Aut O’Mattic A8C Ireland Ltd (High Court, unreported, 20 August 2015, amended 8 September 2015; noted here (pdf) and here (pdf)) (see Irish Independent | Irish Times) Baker J not only gave an order requiring the defendant to identify an account-holder but also granted an injunction requiring the defendant to remove allegedly defamatory posts from a blog hosted on its site. Baker J simply made the relevant orders, whereas Binchy J handed down a full judgment explaining that section 27 was the reason why he refused to award the injunctions against the defamatory posts.…

Even as Public Funding to Universities Decreases, Government Preoccupation with Control Increases

23 September, 201628 September, 2016

| 1 Comment

| Universities

I have the following op-ed in the current edition of the University Times:

Even as Public Funding to Universities Decreases, Government Preoccupation with Control Increases

The political agenda looks for control over the raising and expenditure of funding received from non-state sources.

TCD front, via University Times As students return to college, the politicians return to Leinster House. Both students and politicians are facing very interesting terms, and each group has the capacity to make life difficult for the other.

One of the issues on the returning government’s plate is the vexed question of third-level funding. All sides are agreed that our higher education sector is woefully underfunded. The ongoing fall of Irish universities in international rankings is due, in no small part, to the funding cutbacks that began in 2003 and were cumulatively deepened after the 2008 global financial crisis. A recent report by an expert group, chaired by trade unionist Peter Cassells, made several recommendations on the future funding for higher education, and any choice the government makes will be controversial.

Two questions will have to be answered. The first is: who pays? The second is: how much? …

CAO cynicism

22 August, 201614 September, 2016

| 1 Comment

| Irish Society, Legal Education

It’s that time of the year when the Central Applications Office (CAO) makes offers of third level places to Ireland’s school-leavers. Places are allocated on the basis of a complex but transparent system of supply (of [level 6, level 7 and level 8] courses by third level institutions), demand (for courses by school leavers), and grades (obtained by school leavers in the second level terminal examination, the Leaving Certificate). The grades are converted into points, and the number of points of the last-admitted candidate to a course can be regarded as the cut-off for qualification for entry to that course. The race for points for College places has become increasingly utilitarian over recent years, and the headlines this morning are no different:

Stem steams ahead as students abandon the arts ship

Points for arts courses fall to a new low as students question value of such degrees

Students have been bombarded by calls to study science, technology, engineering and maths (STEM) over the past few years. The message seems to be working, as points for those courses have risen across the board for the first round of CAO offers. Points for arts courses have fallen to a new low as students question the value of those degrees, …

Also: CAO offers: Sharp points rise for courses linked to recovery – Engineering, architecture, construction and business up as arts falls to new low; Focus on construction and engineering results in higher points – Points drop across the board for arts and social science degrees; Business and technology jobs surge as over 52,000 receive CAO offers – Students target courses to give them skills to travel globally.…

Mrs Lawless and the costs of going to law

11 August, 201622 August, 2016

| No Comments

| Irish Law, Legal Services Regulation

I have already noted on this blog the comments of Barrett J (pictured left) in Traynor v Guinness UDV Ireland [2015] IEHC 732 (24 November 2015) [1] that “we have now an expensive court system that remains alien to many and truly accessible to increasingly few”. He recently returned to this theme in Burke v Lawless [2016] IEHC 455 (29 July 2016) (emphasis added):

1. In 2010, Ms Lawless engaged a firm of solicitors to do certain work for her. Apart from an initial down-payment of €5,000, she has not paid a cent for the work that followed. That work was not un-extensive. It related to a dispute concerning an auction of certain lands. Ms Lawless maintained that despite being the highest bidder at an auction of the lands, the lands were not sold to her. Legal proceedings were initiated. Junior and Senior Counsel were retained. Eventually, the proceedings settled. But in all the ‘to-ing and fro-ing’, Ms Lawless ran up legal fees of €176,433.65.

2. A comprehensive fee note issued to Ms Lawless on or about 7th November, 2011, and has been placed before the court in evidence. This indicates that the fees payable by Ms Lawless comprise, inter alia, €120k of solicitors’ fees, almost €40k of fees for Senior Counsel, and €24k for junior counsel.

…

The Copyright and Related Rights (Miscellaneous Provisions) Bill 2016 is announced

4 August, 201630 April, 2020

| 7 Comments

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

Screen Shot 2016-08-04 at 14.53.40
Speaking at the National Council for the Blind of Ireland, the Minister for Jobs, Enterprise and Innovation, Ms Mary Mitchell-O’Connor TD, today announced the long-promised Government approval for the drafting of a General Scheme of Bill entitled the Copyright and Related Rights (Miscellaneous Provisions) Bill 2016. The Bill is in response to the Modernising Copyright Report published in October 2013, compiled by the Copyright Review Committee appointed in 2011. But the response does not cover all of the issues in the Report. Instead, the main issues covered the Heads will include:

• Facilitating access to books for persons with a disability, paving the way for ratification of the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or otherwise Print Disabled;

• Improving educational use, to permit teachers use modern day technology such as whiteboards without fear of infringing copyright, and to facilitate distance learning and education over the internet, in line with the changing provision of education and training in Ireland;

• Improving access to the Courts system for intellectual property claims, in particular to facilitate lower value IP infringement cases to be brought before the District and Circuit courts;

• Extending current copyright exceptions to promote non-commercial research including the introduction of a Text and Data Mining copyright exception into Irish law;

• Extending current copyright deposit provisions relating to books to facilitate the creation of a Digital Deposit on a voluntary basis;

• Creating an exception for use of copyright works to allow for caricature, satire and parody;

• Extending the concept of fair dealing in copyright works for purposes of news reporting;

• Making it an infringement, in the context of photographs, to tamper with metadata associated with the photographic works; and

• Allowing libraries, archives and educational institutions to make a copy of a work in its collection for preservation purposes and for catalogues for exhibitions, and so on.…

Is the President’s spouse “constitutionally required to be perfect”?

29 July, 20166 August, 2016

| No Comments

| Freedom of Expression

I came across the above quote in a newspaper article over the weekend. It was about Bill Clinton’s role in a Hillary Clinton White House. But it reminded me of a war of words which broke out a little closer to home a few months ago, concerning remarks made by Sabina Higgins, wife of President Michael D Higgins, to the Nursing and Midwifery Board of Ireland in Trinity College Dublin. Her ex tempore comments, about abortion, were controversial (eg here; here; here; and here) and she was immediately criticised – for the words she chose, for the point she made, and for the fact that she made it.

It is upon this last strand of criticism that I want to focus here. The headline to an article by David Quinn in the Irish Independent at the time captures the essence of this objection: The presidency must stay above the fray – otherwise you rob it of prestige. The controversy over Mrs Higgins’s remarks poses the question whether the spouse of the President should be subject to similar bounds. At the time, there was a great deal of public support for this position.…

What should, and should not, be in a National Anthem Bill?

25 July, 201614 September, 2020

| No Comments

| Copyright, National Anthem

Harp via wikipedia and music notes via pixabay This is a call for help. I would like suggestions as to what should, and should not, be in a National Anthem Bill – either in the comments below, via the contact form on this blog, by email, on a postcard, or even by means of carrier pigeon (or messenger raven) …

In four recent posts (here, here, here, and here) I’ve been looking at various issues around the national anthem. The context has been Senator Mark Daly‘s National Anthem (Protection of Copyright and Related Rights) (Amendment) (No 2) Bill 2016, but the analysis has ranged much more widely than that. And it has become clear to me that there are lots of gaps in the story of our national anthem. Some of those gaps could be filled by legislation, and so I am trying to work out what that legislation might provide.

I am conscious that, to a man with a hammer, every problem looks like a nail; and to a lawyer, every problem looks like it can be solved with legislation. A hammer isn’t always the solution to DIY problems, and legislation isn’t always the solution to social problems. So, I want to identify not only the issues around the anthem that could admit of a legislative solution, but also the issues where legislation would be unsuitable or ill-advised.…