cearta.ie – Page 99 – the Irish for rights

For those interested in my earlier posts on free speech and national security and terrorism and speech, a new paper on SSRN: Free Speech, Terrorism, and European Security: Defining and Defending the Political Community by Shawn Marie Boyne (Indiana University School of Law | personal site) addresses the issues, building upon her earlier paper “The Criminalization of Speech in an Age of Terror ” (SSRN). The abstract of the new paper provides:

In this paper I examine the impact that the struggle against terror has had on free speech protections in three European states [more precisely: the ECHR, the EU, and at member state level]. Specifically, I argue that prosecutors have overbroadly interpreted and expanded the definition of laws designed to target individuals who provide material support to terrorists. As a result, some prosecutions undertaken by European states threaten to undermine the core democratic value of free speech. By analyzing specific cases, I explore how some liberal democratic states have chosen to navigate the tension between security and liberty that Hannah Arendt [pictured, above left] referred to as the “crisis of authority.” Although I discuss each state’s relevant legislation, my primary focus is to draw distinctions and comparisons between the three countries based on recent cases that attempt to criminalize speech.

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The impact of the UK’s libel amendments on Irish law

28 May, 201016 November, 2015

| 4 Comments

| Defamation, Defamation Act 2009, Freedom of Expression, libel tourism, Libel tourism

Reform of the UK’s libel laws could have interesting consequences for Irish law. A cartoon from a story in this week’s Economist sets the scene:

Cartoon from the Economist, via their blog

A few extracts from the article accompanying the above cartoon:

Improving a reputation

England’s strict libel laws face a shake-up

Selling legal services to people in other countries is a lucrative business for Britain, but where the libel industry is concerned the trade is increasingly unwelcome. Foreigners can sue each other in English courts, even when publication has been almost wholly elsewhere. .. For foreigners and locals alike, mounting a defence is costly and tricky. …

The fear of libel suits may chill academic debate (big medical companies have sued several scientists for criticising their products). Outfits campaigning against beastly regimes abroad say they have had to defang their reports because of the threat of litigation.

Many want the law to be fairer, simpler, quicker and cheaper. … Anthony Lester QC … submitted a private member’s bill which would make most of the important changes that reformers have been seeking. One would replace the flimsy “fair comment” defence (which easily gets tied up in questions of fact) with a new one of “honest opinion”. … A second change would replace the “responsible publication” defence, which puts more weight on procedure than substance, with one of “public interest”.

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From Mansfield to Kull: constructing the Law of Restitution

26 May, 201023 January, 2013

| 1 Comment

| Restitution

On 19 May 1760, Lord Mansfield (left) delivered judgment in the famous case of Moses v Macferlan (1760) 2 Burr 1005, 97 ER 676, [1558-1774] All ER Rep 581, [1760] EngR 713 (19 May 1760) (warning: pdf; an unofficial html is here).

Much of the modern law of restitution has been constructed upon the foundations which he laid down:

If the defendant be under an obligation, from the ties of natural justice; to refund; the law implies a debt, and gives this action, founded in the equity of the plaintiff’s case, as it were upon a contract (“quasi ex contractu,” as the Roman law expresses it).

This species of assumpsit, (“for money had and received to the plaintiffs use,”) lies in numberless instances, for money the defendant has received from a third person; which he claims title to, in opposition to the plaintiff’s right; and which he had, by law, authority to receive from such third person. …

This kind of equitable action, to recover back money, which ought not in justice to be kept, is very beneficial, and therefore much encouraged. It lies only for money which, ex aequo et bono, the defendant ought to refund: it does not lie for money paid by the plaintiff, which is claimed of him as payable in point of honor and honesty, although it could not have been recovered from him by any course of law; as in payment of a debt barred by the Statute of Limitations, or contracted during his infancy, or to the extent of principal and legal interest upon an usurious contract, or, for money fairly lost at play; because in all these cases, the defendant may retain it with a safe conscience, though by positive law be was barred from recovering.

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The formal recognition of the Press Council

25 May, 201010 December, 2012

| 4 Comments

| Defamation, Defamation Act 2009, Press Council

The second Annual Report of the Press Council and the Office of the Press Ombudsman (pdf) was launched yesterday. Speaking at the launch, Dermot Ahern, the Minister for Justice, Equality and Law Reform, announced that he had, on 21 April, signed the Order granting the Press Council of Ireland recognition as the Press Council for the purposes of the Defamation Act, 2009. The full text of the Defamation Act 2009 (Press Council) Order 2009 (SI No 163 of 2010) (pdfs here and here) is as follows [with added links]:

Defamation Act 2009 (Press Council) Order 2009 (SI No 163 of 2010)

I, Dermot Ahern, Minister for Justice, Equality and Law Reform, being satisfied that The Press Council of Ireland complies with the minimum requirements specified in Schedule 2 to the Defamation Act, 2009 (No 31 of 2009), hereby, in exercise of the powers conferred on me by section 44 of that Act, make the following order with respect to which, pursuant to subsection (7) of that section, a draft has been laid before each House of the Oireachtas and a resolution approving of the draft has been passed by each such House:

1. This Order may be cited as the Defamation Act 2009 (Press Council) Order 2010.

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Thawing the libel chill?

24 May, 201022 June, 2010

| 2 Comments

| Defamation, Defamation Act 2009, libel tourism

On Thursday evening, from 6:30pm to 8:00pm, the Science Gallery in TCD will host what promises to be a fascinating event on the chilling impact of the law of libel on scientific debate:

Libel Chill with Simon Singh and Peter Wilmshurst

Libel reform has become increasingly relevant in scientific research and journalism in the UK and Ireland, as highlighted in recent times by the high profile case of Simon Singh. Libel laws have been accused of intimidating journalists, scientists and publishers into silence for fear of legal persecution. The effect has been dubbed “libel chill” and the Libel Reform Campaign argues ‘Freedom to criticise and question, in strong terms and without malice, is the cornerstone of argument and debate, whether in scholarly journals, on websites, in newspapers or elsewhere. Our current libel laws inhibit debate and stifle free expression. They discourage writers from tackling important subjects and thereby deny us the right to read about them.’

Master of ceremonies for the evening will be Myles Dungan, and speakers will include Simon Singh, who successfully defended a two year libel battle with the British Chiropractic Association, and his lawyer Robert Dougans. Cardiologist Peter Wilmshurst who is currently being sued for libel in the biggest ongoing medical libel case, and his lawyer Mark Lewis, will also speak at the event.…

Academic Freedom in the Universities Act, 1997

24 May, 201024 May, 2010

| 6 Comments

| Academic Freedom, Censorship, Freedom of Expression, General, Universities

Academics for Academic Freedom logo, via their site I’m sorry not to have been able to acknowledge the celebration of AFAF‘s International Academic Freedom Day on the day itself by a wonderful blog carnival on the right to learn, ably convened by Deirdre Duffy, and hosted by the ever-wondrous Human Rights in Ireland blog. I’ve blogged on academic freedom on many previous occasions (see especially here and here), and I’d like here look at some of the Irish legal aspects of the issue.

Section 14(1) of the Universities Act, 1997 (also here) provides that Irish universities have “the right and responsibility to preserve and promote the traditional principles of academic freedom” in the conduct of their internal and external affairs, and that they are entitled to regulate their affairs in accordance with their “independent ethos and traditions and the traditional principles of academic freedom”. This is an important guarantee of institutional autonomy, and is a sine qua non for the right of academics to teach, research, publish and participate in public debate without fear of retribution from their institutions. That right is secured by section 14(2) of the Act, which provides:

A member of the academic staff of a university shall have the freedom, within the law, in his or her teaching, research and any other activities either in or outside the university, to question and test received wisdom, to put forward new ideas and to state controversial or unpopular opinions and shall not be disadvantaged, or subject to less favourable treatment by the university, for the exercise of that freedom.

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xkcd on blogging

23 May, 201024 May, 2010

| No Comments

| Blogging, General

From xkcd:

Hint: to get the full effect, mouse over the image.…

Rationales for free speech online

16 May, 2010

| 2 Comments

| Freedom of Expression

Angela Daly, a PhD candidate in Law by the EUI, Florence, has just published a fascinating article on SSRN on the extent to which the existing rationales for freedom of expression apply online.

The abstract provides:

The Internet, and Rationales for Free Expression

The changes to society brought by the Internet have prompted a challenge to orthodoxy in a number of areas of law, Intellectual Property being a notable example. Human rights, especially those related to information, knowledge and ideas, have been drawn into this re-evaluation, with various issues being encountered in practice demanding solutions that accord with respect for rights and freedoms, and with the functioning of this new technology. Nevertheless, the theoretical aspect of human rights in the Internet context has not been so much addressed. The Internet has implications for how rights are conceived, especially the freedoms of speech and expression. This study is an examination of whether the existing rationales for free speech and expression still apply in the context of cyberspace. These rationales, coming mainly from court decisions (in particular, the US Supreme Court) as well as the academic literature (notably Cass Sunstein‘s work), will be examined, alongside observations about the state of play in the Internet, with Yochai Benkler‘s elaboration of the development of “commons-based peer production” initiatives being of particular relevance.

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