cearta.ie – Page 3 – the Irish for rights

Political speech and the Defence Forces – Part 1 – The apolitical nature of the Defence Forces and the legislative history of section 11 of the Defence (Amendment) Act 2024

Having considered the Defence (Amendment) Bill 2024 (the Bill) and the advice of the Council of State (pictured left), the President yesterday (Wednesday, 17 July 2024) signed the Bill and it accordingly become law as the Defence (Amendment) Act 2024 (the 2024 Act; update: available here) (see Irish Times, 17 July 2024). Articles 31 and 32 of Bunreacht na Éireann provides provides for a Council of State to aid and counsel the President. Article 26 provides that the President may, after consultation with the Council of State, refer a Bill to the Supreme Court for a decision on its constitutionality. Last Monday, 15 July 2024, the President convened a meeting of the Council of State (pictured left), to hear from the Council regarding the constitutionality of the Defence (Amendment) Bill 2024. In a statement in advance of the meeting, the President said that he intended “to consult the Council of State in particular on Sections 11 and 24 of the Bill and whether the interference with constitutional rights is disproportionate” (see Irish Times, 12 July 2024). Section 11 of the Bill (now Act) restricts the Article 40.6.1(i) right to political expression of a member of the Permanent Defence “while in uniform or otherwise making himself or herself identifiable as a member of the Permanent Defence Force”.…

Settlement in HKR Middle East Architects Engineering LC v English

28 June, 202428 June, 2024

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| Restitution, Restitution

In three extensive posts on this blog (here, here, and here), I looked at issues arising out of McDonald J’s judgments in HKR Middle East Architects Engineering LC v English (No 1) [2019] IEHC 306 (10 May 2019); (No 2) [2021] IEHC 142 (3 March 2021); (No 3) [2021] IEHC 376 (31 May 2021). The facts were colourful, and the legal issues were extensive; the subset relevant to this blog included restitution for unjust enrichment by means of a failure of basis (formerly total failure of consideration), the quantification of enrichment, and the potential availability of an automatic resulting trust.

I note from today’s Irish Times that the case has now been settled (with added links):

Settlement reached in Middle Eastern firm’s case against businessman

Matter resolved in out-of-court discussions, judge told

Aodhan O’Faolain

A resolution has been reached in a long-running commercial court action brought by a Middle Eastern engineering and architecture firm against businessman Barry English over alleged unjust enrichment.

The action was launched in 2017 by Hogan Keoghan Ryan Middle East Architects Engineering LLC (HKRME) against Mr English, the founder of Winthrop Engineering, who had denied all the claims against him.

…

Vidal v Elster; Trump too small; and Thomas too small-minded

14 June, 202419 August, 2024

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| Freedom of Expression, Freedom of Expression, Freedom of Information, Intellectual property

In Vidal v Elster 602 US __ (2024) (pdf), the US Supreme Court yesterday upheld the refusal of the US Patent and Trademark Office to register “Trump too small” as a trademark. In his opinion for the Court, Thomas J proved himself small-minded both in his approach to First Amendment analysis in general and in his approach to the fraught inter-relationship of trademark restrictions and the First Amendment in particular.

In this case, the plaintiff, Steve Elster, sought trademark protection for t-shirts featuring the slogan “Trump too small” (pictured above left). The slogan refers to a debate in the 2016 presidential primaries when Senator Marco Rubio teased Donald Trump about the size of his hands (with implications about other features). The plaintiff wanted to use it to criticize President Trump in general, and, specifically, to convey “that some features of President Trump and his policies are diminutive”. Section 1052(c) of the Lanham Act (Trademark Act, 1946) (15 USC § 1052(c)) precludes registration of a trademark that (emphasis added):

consists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent, …

As a consequence of this “names” clause, an examiner from the US Patent and Trademark Office (USPTO) refused the plaintiff’s application to register “Trump too small”, and the Trademark Trial and Appeal Board (TTAB) affirmed.…

Copyright balance, technological protection measures, rights management information, and fair dealing

10 June, 20249 July, 2024

| 1 Comment

| COIPLPA, Copyright, CRC12 / CRC13

The law of copyright seeks to balance the interests of various members of the copyright community: the authors of copyright works, the big content companies to which they license or transfer their rights, and the societies which collect their royalties; platforms and intermediaries which facilitate online distribution of and access to copyright content; and users (whether individual, or heritage, or education, etc) who wish not only to use but to build upon existing works. Legislation such as the Copyright and Related Rights Act, 2000 [CRRA], and the InfoSoc Directive (Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ L 167, 22.6.2001, p. 10–19)), have sought to get these balances right, but are often criticised for failing to strike them in appropriate places.

Again, it was a theme of Modernising Copyright (2013) (pdf, via here), the Report of the Copyright Review Committee [CRC Report], that reforms to the 2000 Act should balance the interests of all of the various members of the copyright community (full disclosure, I was the Chair of that committee). So, for example, in the context of technological measures for the protection of copyright or for the management of copyright information, the CRC Report recommended not only that the legal rules underpinning such measures be strengthened, but also that there would be a practical remedy where such measures operated to prevent someone from undertaking acts permitted by the exceptions provided in the copyright legislation.…

Duress in Contract and Restitution for Unjust Enrichment: Lessons from Mistake

22 May, 202410 June, 2024

| 1 Comment

| Contract, Contract, Restitution

Via Steve Hedley‘s Private Law Theory blog, I am delighted to learn of Charmaine Chang “When a Contract Falls Short: A Special Case for Restitution under Duress in Unjust Enrichment” (2024) 6 City Law Review 30 (CityLR (pdf) | SSRN); the abstract provides

The English law of unjust enrichment deals with situations where it is unjust for someone to receive a benefit without paying for it. Duress is one of the unjust factors that allows for restitution.

The recent approach of the court assumes the same test for duress in contract and unjust enrichment as in CTN Cash and Carry. This is problematic in cases where there are no valid contracts in play. First, this obscures the normative foundation of unjust enrichment. The higher threshold for establishing duress in contract law is justified by its own principles and aims which are not present in unjust enrichment. Second, the existing grounds of recovery that centre on the application of pressure to the claimant and third-party cases in duress show that duress in unjust enrichment is primarily claimant-sided. It is not concerned with the reprehensible conduct of the defendant.

This article argues for a lower threshold to establish duress in unjust enrichment.

…

Closing off the Warren of Negligence Claims for Data Breaches

1 February, 20248 February, 2024

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| Cyberlaw, Cyberlaw, Data Protection, Digital Rights, Privacy, Privacy, Tort

I have just published “Closing off the Warren of Negligence Claims for Data Breaches” in Damian Clifford, Kwan Ho Lau & Jeannie Marie Paterson (editors) Data and Private Law (Hart Studies in Private Law, Bloomsbury, 2023) chapter 10; pp161-174 (available via SSRN). Here is the abstract:

Large databases of personal data are increasingly vulnerable to hacks. Arising out of the biggest data breach in the United Kingdom’s history, the claimant in Warren v DSG Retail Ltd [2021] EWHC 2168 (QB) (30 July 2021) sought damages for distress for breach of data protection legislation, misuse of private information, and breach of a duty of care in negligence. Saini J dismissed the negligence claim because there is neither need nor warrant to impose such a duty of care where there exists a bespoke statutory regime. But this is an incoherent policy, inconsistently applied. Moreover, it ought not to operate at all in cases where the defendant has voluntarily assumed responsibility towards the claimant. Nevertheless, after Warren, the tort of negligence provides no incentive for the controllers of large databases to protect them.

The cover of the book is above, right. It is very elegant. And this is one time where you really can judge the book by its cover.…

Another Tale of Two Toms – Restitution of Mistaken Payments, and Interceptive Subtraction, again – updated

26 January, 202428 May, 2024

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| Mistake, Mistaken payments, Restitution

Toms: Holland/er

Actor Tom Hollander (imdb | wikipedia | image source) told an anecdote to Seth Meyers on the Late Night tv show (geoblocked NCB clip | YouTube clip), about when he received a bonus payslip meant for actor Tom Holland (imdb | wikipedia | image source). At the time, the two actors shared an agent, who obviously mixed up his own clients, so it’s not a surprise that the rest of us do too. For example, after the casting of Captain America: Civil War (2016 | imdb) was announced, I thought it was a brave decision to have Mr Collins play Spiderman! Hollander’s story relates to one of Holland’s subsequent outings as Spiderman. Hollander told Meyers that he got an email containing Holland’s first box office bonus payslip for The Avengers: Infinity War (2018 | imdb). Hollander said that it was for an “astonishing amount of money”.

Writing in The Guardian, Stuart Heritage commented that this is “a nice little insight into the world where there are too many famous Toms with similar surnames”. Indeed, not only are there too many Toms with the same surnames, sometimes they receive each other’s money, not merely the payslip.…

Identifiability in defamation, data protection, and privacy cases (updated)

3 October, 20234 October, 2023

| 4 Comments

| Defamation, Defamation, Privacy, Privacy

In an earlier post, I considered the settlement in Carey v Independent News & Media and the status of Bloomberg v ZXC [2022] AC 1158, [2022] UKSC 5 (16 February 2022) in Ireland. According to media reports this time last week, a case similar to Carey may very well be brewing:

Sinn Féin TD takes breach of privacy action against Mediahuis and state (Barry Whyte, Business Post, 24 September 2023)
Martin Kenny also suing the gardaí and the state over a series of articles published last year which did not name him.

Sinn Féin TD sues An Garda Síochána, Independent titles publisher and State (Colm Keena, Irish Times, 24 September 2023)
Martin Kenny is taking breach of privacy case arising from news report that did not name him or his party.

It seems that the articles in respect of which he is suing contain a quote from An Garda Síochána about an ongoing investigation into an alleged criminal offence, that they say that there was a connection to a politician who was a member of an unnamed party, and that they made it clear that there was no suggestion that this politician was being accused of any wrongdoing.…