In the Irish Times case, Hamilton CJ stated:

While the public nature of the administration of justice and the constitutional right of the wider public to be informed of what is taking place in courts established by the Constitution are matters of public importance these rights must in certain circumstances be subordinated to the interests of justice and the rights of an accused person which are guaranteed by the Constitution.

It is difficult to see what right could be asserted by someone defending section 14 of the 1929 Act against an Article 34 challenge, although Article 40 does say that the publication of indecent matter is an offence which shall be punishable in accordance with law. The offence of blasphemy, also mentioned in Article 40, is contained in section 36 of the Defamation Act 2009 which the then Minsiter for Justice was at pains to stress had to be preserved due to a “constitutional obligation”. Given that the 2009 Act does not deal with publication of indecent matter, one could speculate that the Minister was perhaps aware of section 14 of the 1929 Act and of the opinion that it partially satisfied the constitutional obligation to provide for an offence of indecent publication. Arguably, if the then Minister’s reasoning is accepted, sections 14 and 15 of the 1929 Act must  be retained unless and until Article 40 is amended.

O’Flaherty J, also in the Irish Times case, was of the opinion that freedom of the press is guaranteed under Article 40 “and that the protection in the constitutional provision is not confined to mere expressions of convictions and opinions.” The Supreme Court does not appear to have considered the 1929 Act (despite considering a variety of other laws), but it is hard to see how section 14 be reconciled with O’Flaherty J’s comments.

The purpose of reporting restrictions and in camera rules relied on today are of a different nature than the one contained in section 14 of the 1929 Act. O’Flaherty J noted:

While [various] enactments authorise the exclusion of members of the public, the entitlement of bona fide representatives of the press to attend such trials is preserved. Where a trial involves offences of a sexual nature, while the press may attend, legislation requires that when they report, they must do so in a way that safeguards the anonymity of the parties.

He refers to section 20(3) of the Criminal Justice Act 1951 which allows a judge to exclude the public from criminal trials for offences which are, in the opinion of the court, of an indecent or obscene nature. This sounds like a legislative enactment of the practice referred to by Dr Keating in the Free State era, when judges might invite members of the public to leave a courtroom in the interests of “respect”.

One would have assumed that in a case where section 20(3) of the 1951 Act is invoked and members of the press remain they are free to make accurate reports on the proceedings once parties are not identified. It is hard to see the point in excluding members of the public in those circumstances, if they can subsequently read the indecent or obscene details in a newspaper. However, if a reporter is present in a case in which section 20(3) is invoked and the trial judge is of the opinion that the details of the case are indecent or obscene, it would seem logical that there would be stronger grounds for a prosecution under section 15 of the 1929 Act, but I’m not aware of this ever happening.

Does anyone know more about the 1929 Act?

In the new Irish Free State, low levels of sexual immorality and sexual crime were viewed as two indicators of this nation’s health. The reporting of sexual crime was to remain largely off limits to Irish journalists up to the 1940s and beyond.

A prosecution brought against a newspaper editor in 1929 did much to establish this status quo. The editor in question was D.C. Boyd of the Waterford Standard. He had reported explicit details of a case in which a local business man was accused of raping a 13 year old girl.

You can listen here to Myles Dungan’s interview with Dr Tony Keating, who gave a lecture on the topic in Waterford.

Dungan says that “reporting of sexual crime was to remain largely off limits to Irish journalists up to the 1940s and beyond.” I was curious to learn how far that “beyond” stretched and what became of the offence Boyd was prosecuted with.

Section 14(1) of the Censorship of Publications Act 1929 provides:

It shall not be lawful to print or publish or cause or procure to be printed or published in relation to any judicial proceedings:

(a) any indecent matter the publication of which would be calculated to injure public morals, or

(b) any indecent medical, surgical or physiological details the publication of which would be calculated to injure public morals.

Section 15 says that an offence is punishable by a fine of up to £500 and/or up to six months imprisonment (which could include hard labour). In light of current debates about ISP and website operator liability for online content, it is interesting to note that section 15 specifically provided that the liability for the offence extended to proprietors, editors, publishers and “master printers”.

So, when was it repealed? It wasn’t. Sections 14(1) and 15 remain on the books.

According to Keating, Boyd’s case was the first prosecution of this type and was described by the trial judge as being exactly the type of case the law was introduced to deal with. One can only hope that it remains in force due to oversight rather than principle.

Dr Keating says that the maximum fine of £500 in section 15 would, in today’s money, be £22,000 (I am assuming he was referring to sterling). The Fines Act 2010 means that the offence is now subject to a Class A fine, currently up to €5,000.

I’m not aware of any more recent prosecutions but in 1953 Joseph Blowick TD was asking the then Minister for Justice Gerald Boland whether he had submitted a newspaper report on the murder of a judge‘s daughter in Northern Ireland to the Attorney General with a view to having it prosecuted under section 15.

Surely the Minister will agree that the publication of the sordid details referred to in the particular paragraph should not go at least without protest from the Minister provided that he is not statutorily debarred from making a protest to the Censorship Board? In the interests of the clean journalism practised in this country, very laudably practised I must say, surely the Minister should not allow the publication of sordid details like these to pass.

The Minister informed Mr Blowick that his officials had considered the publication but did not believe it could have been calculated to injure public morals.

It is difficult to see how the prohibition on publication is compatible with the Constitution or the European Convention on Human Rights. Even if freedom of expression were not an issue, the prohibition itself refers to both “indecent matter” which would be defined quite differently today than in 1929. Another difficulty, as was the case with Mr Blowick’s complaint in 1953, would be in proving that the publication was “calculated to injure public morals”. It is a mystery how Mr Boyd was found to have done so in 1929.

The amendment was destined to be introduced by statutory instrument and the concerns of any critics were always going to be ignored but the attitude of Séan Sherlock, junior Minister for Research & Innovation, to the issue is strange and contradictory.

His announcement of the new law contains a significant dig at those who opposed the statutory instrument the Government has just introduced.

I urge all interested parties on all sides to come together and work in a constructive and realistic way to the benefit of all.

This is a boggling statement. Like any campaign there was a lunatic fringe that fired off ill-informed comments. But most opponents were relatively well organised and the Minister met with representatives of some of them (read Michele Neylon’s account here). So, at least some “sides” came together. The Stop Sopa Ireland campaign was up and running in a very short time and, unlike most campaigns of opposition, actually proposed alternative wording to the Minister.

A key paragraph in that alternative wording would have included an obligation on a court to carry out a balancing act when considering whether or not to grant an injunction to a copyright owner.

In considering an application for an injunction under this subsection, the court shall have due regard to the rights of any person likely to be affected by virtue of the grant of any such injunction (including the freedom to conduct business, the right to protection of personal data and the right to receive or impart information) and the court shall give such directions (including a direction requiring that persons likely to be affected be notified of the application) as the court considers appropriate in all of the circumstances.

It appears that Minister Sherlock considers such a proposal to be non-constructive and part of a campaign of setting the “dogs” on him. However, a few weeks ago the Minister bizarrely “welcomed” the decision of the European Court of Justice in Sabam v. Netlog with the following comment:

[T]his decision … reiterate[s] that, in the context of measures adopted to protect copyright holders, national authorities and courts must strike a fair balance between the protection of copyright and the protection of the fundamental rights of individuals who are affected by such measures …

I welcome today’s decision from the European Court of Justice. This will provide further clarity to Irish courts in adjudicating such matters.

What would also have provided clarity to Irish courts in adjudicating such matters is a clause like the one included in the alternative wording submitted to Minister Sherlock.

Instead, a bare-bones statutory instrument has been used to amend the Copyright & Related Rights Acts providing none of the clarity that the Minister otherwise appears to favour.

[Update 7 March 2012] A recent press release by Minister Sherlock’s party colleague, Phil Prendergast MEP demonstrates what appears to be quite a different attitude to citizen engagement with copyright reform.

Commenting on the referral of the Anti-Counterfeiting Trade Agreement to the Court of Justice of the European Union, Ms Prendergast says:

This extraordinary u-turn by the European Commission, who had up until now dismissed legitimate concerns, demonstrates that engaged citizens and civil society groups can have a decisive impact on politics, especially when fundamental freedoms are at stake.

Not under Labour in Ireland, it would seem.

Q: if you are Irish and are disqualified from driving in Ireland, will that disqualification apply in the UK?

A: No, but you will have surrendered your Irish licence and will then require a new foreign licence to drive abroad.

European Convention on Driving Disqualifications

Driving licences are already harmonised at European Union level, so there is some degree of uniformity across the EU in relation to the requirements to obtain one. This does not extend to harmonising disqualifications.

The Convention itself only partly harmonises driving disqualifications. It says that:

drivers disqualified from driving in a Member State other than that of their normal residence ought not to escape the effects of such measure when present in a Member State other than that of the offence

So, if an Irish driver is on holidays in the UK and, while there, is convicted of a serious driving offence and disqualified from driving in the UK, that disqualification will be notified to the Irish authorities who can apply it in Ireland. There are circumstances in which the Irish authorities can refuse to recognise the disqualification.

However, the Convention does not provide that an Irish driver who is disqualified from driving by an Irish court will also be disqualified from driving in the UK.

In short, foreign disqualifications follow you home, but home disqualifications don’t follow you abroad.

Many countries (including Ireland and the UK) allow for the exchange of a foreign driving licence in return for a domestic one but a current foreign licence is required. If disqualified from driving in Ireland, the Irish licence will be surrendered and therefore not available for exchange in the UK, for example. Therefore you would have to comply with the requirements of the foreign country for obtaining a new licence. Most countries, like the UK, impose a residency requirement for applicants.

Types of disqualifications covered

The main offences covered by the Convention are:

• reckless or dangerous driving;
• hit-and-run driving;
• driving while disqualified;
• drunken driving and drug driving (including refusal to give a sample); and
• speeding.

Status of Convention

The Convention will not apply to all the Member States that have signed it until it is ratified by all of them. However, Ireland and the United Kingdom have applied its provisions early between themselves.

Irish Law

The Convention was implemented into Irish law by section 9 of the Road Traffic Act 2002 (note that the text linked to has been amended, see here for changes or here for a restatement of the full Act). However, it did not take effect between Ireland and the UK until 2010. The Convention does not apply to Wales or Scotland.

More

• Explanatory note on the Convention
• Guide by the UK Crown Prosecution Service
• Department of Transport press release

Read about the issue here:

• TJ McIntyre
• McGarr Solicitors
• Adrian Weckler
• Michele Neylon

Register your protest here:

• Stop SOPA Ireland

The huge Government majority means that any such debate would almost inevitably result in the law being passed by the Oireachtas anyway. Nevertheless, the issue should be publicly debated by the Government as it pits the interests of a small industry (Irish record companies) against those of an industry that is hugely significant for the “smart economy” (Google, Facebook, Twitter, YouTube, etc).

It’s also worth bearing in mind the quality of evidence often advanced by the record industry when seeking in junctions, as indicated by this post by Justin Mason.

Why does all of this matter? I again quote Cory Doctorow.

… I don’t care if you want to attempt to stop people from copying your work over the internet, or if you plan on building a business around this idea. I mean, it sounds daft to me, but I’ve been surprised before.

But here’s what I do care about. I care if your plan involves using “digital rights management” technologies that prohibit people from opening up and improving their own property; if your plan requires that online services censor their user submissions; if your plan involves disconnecting whole families from the internet because they are accused of infringement; if your plan involves bulk surveillance of the internet to catch infringers, if your plan requires extraordinarily complex legislation to be shoved through parliament without democratic debate; if your plan prohibits me from keeping online videos of my personal life private because you won’t be able to catch infringers if you can’t spy on every video.

The Daily Business Post has published some of my thoughts on the Irish perspective to the PhoneDog v. Kravitz case, in which a company is suing a former employee for his use of what was a corporate twitter account. PhoneDog primarily seeks a number of injunctions and damages but has raised the issue of ownership in twitter accounts.

Some more views are available in the Irish Independent and WardBlawg.

Exhibit A: McCambridge bread

I had assumed that the McCambridge v. Brennan brown bread case was solely one of intellectual property infringement but the judgment of Mr Justice Peart, which has now been published, shows that there is more to it (an Irish Times report of the case is here).

Indeed, Peart J notes that McCambridge do not “have any proprietary rights as such over that type of re-sealable bag, its shape or indeed the shape and size of the loaf of bread inside.” The company itself accepted that it does have such proprietary rights, nor rights over the shape and colour or ingredients of the bread itself.

Notwithstanding that, Peart J agreed that the overall impression on consumers satisfied the conditions for passing off (a form of action used to protect unregistered intellectual property rights).

[I]t would take more care and attention that I believe it is reasonable to attribute to the average shopper for him or her not to avoid confusion between the two packages when observed on the shelf, especially when these are placed adjacently or even proximately so.

Peart J indicated that an injunction should be granted to prevent further passing off. However, the interesting element of the case comes next: he also considered whether McCambridge are entitled to an injunction under section 71 of the Consumer Protection Act 2007 on the basis that Brennans were engaging in a misleading commercial practice.

The Minister for Jobs, Enterprise & Innovation recently announced a planned overhaul of consumer legislation, arguably ignoring that the 2007 Act was supposed to be just that (I wrote about it here in April 2011). The 2007 Act was quite significant, but appears to have been barely used, particularly by the National Consumer Agency. Indeed, Peart J states that they held a watching brief in McCambridge v. Brennan but, strangely, adopted “a neutral position”.

(The failure of the Agency to adopt a position is reminiscent of the refusal of the Data Protection Commissioner to involve his office in the EMI v. eircom case. Ironically, he recently went on to order eircom to halt the three-strikes system which resulted from that case.)

Exhibit B: Wot, no McCambridge?

Peart J decided that McCambridge were not entitled to an injunction under section 71, apparently (my interpretation) on the basis that the design of its packaging was not a commercial practice involving marketing or advertising.

Peart J was to hear the parties in relation to the exact terms of his proposed injunction, but the decision to grant an injunction has since been appealed to the Supreme Court by Brennans.

As stated, my interpretation of Peart J’s comments (at paragraph 45) is that an injunction was not available because packaging was not “marketing or advertising”. I would have thought that the European Communities (Misleading and Comparative Marketing Communications) Regulations 2007 were aimed at preventing misleading advertising and that the (quite similar) provisions of the 2007 Act were of broader application such as would capture packaging. The 2007 Act is the Irish implementation of the Unfair Commercial Practices Directive which, in the UK, was implemented by statutory instrument. Guidance from the UK’s Office of Fair Trading gives the following example of a prohibited practice:

A trader designs the packaging of shampoo A so that it very closely resembles that of shampoo B, an established brand of a competitor. If the similarity was introduced to deliberately mislead consumers into believing that shampoo A is made by the competitor (who makes shampoo B) – this would breach the [Regulations].

Of course, Peart J had decided that Brennans’ passing off was not deliberate, and so could not have found them to have intended to “deliberately mislead consumers”. Nevertheless, it appears to be a case where the views of the Consumer Protection Agency would have been of use.

‘He got off on a technicality.’ Why do we think that this excuses a badly prepared or presented case? The law is meant to protect us from tyranny, from the false accusation and the trumped-up charge. If it says I am guilty of drunken driving when I have consumed a defined amount of alcohol, within a defined time of driving a motor car, then it is up to the person who accuses me of the offence to prove that it was what I was doing. If he fails to make a connection between the time I was driving and the time the alcohol level was measured, then he has not proved his accusation. All this is written down; it is the law. It is neither advanced science nor legal devilry.

Anne Marie Kennedy, who works at the University of Limerick, said yesterday that she, along with several more friends, have been trying to insert the village name into the “home” section of their Facebook profiles in recent months. But they have not been successful.

Kennedy also tried to set up a Facebook page entitled, “Please get my hometown Effin recognised”. But it too was blocked by the social networking site.

“It came back with an error message saying ‘offensive’,” she said.

It seems an appropriate time to post a recording of An Effin Man, by my late father Garry McMahon.

It’s a wonderful place as I’m sure you will find

And if you can’t see that you’re just Effin blind.

Back in January, I wrote about so-called technicality defences and quoted from the leading Irish textbook on drunken driving law by Mark de Blácam SC. He notes, as have many judges, that drunken driving prosecutions have generated an substantial volume of appeals and challenges. Retired judge Mary Kotsonouris wrote recently that the introduction of the breathalyser lead to an explosion in “technicality” defences, demonstrating the lengths people are willing to go to in order to stay on the road. These challenges are likely to continue with each change to the law, despite frequently failing.

de Blácam’s book was quoted in the case referred to above in which the defence hinged on the humidity of the room in which the breathalyser was operated. The guidelines for the machine state that the optimum operating conditions are a room temperature in the range of 15°C to 35°C and a humidity between 30 and 90 per cent. These conditions are not set out in the applicable legislation, but the test report generated by the machine (the section 17 certificate) records the temperature and humidity of the room at the time.

In this case, the room humidity was 26% and the prosecution was dismissed by the trial judge on the basis that the humidity of the room was below 30%. The prosecution stated a case to the High Court (a procedure by which the High Court is asked a series of questions in order to guide other courts and future prosecutions). One element to the case stated concerned the trial judge’s refusal to allow for an adjournment so that the prosecution could present evidence to establish that the low humidity level did not affect the test.

However, this is the key question for drink driving prosecutions:

was the trial judge correct as a matter of law in dismissing the case on the ground that the humidity level was 26%?

Somewhat surprisingly, the Director of Public Prosecutions does not seem (on the basis of the judgment) to have presented evidence as to whether or not a humidity level of 26% would affect the test. Instead, it seems to have relied on the presumption in the law that a section 17 certificate is sufficient evidence that the requirements of the legislation have been complied with.

Mr Justice Nicholas Kearns decided that the trial judge was not correct in dismissing the prosecution.

There is nothing on the face of the Section 17 certificate to suggest that the Intoxilyser was not working on the date in question. There is no requirement in either the legislation or in the regulations that the temperature and humidity be noted, much less that they be requirements for a conviction on the basis of the Section 17 certificate. No evidence was adduced by the accused to question the reliability of the Intoxilyser or the accuracy of the reading of 58 and there was no evidence before the trial court to rebut the presumption that the certificate was accurate.

So, while a temperature or humidity reading on a section 17 certificate which falls outside of the optimum ranges will still raise an eyebrow, evidence will now be required to show that the reading adversely affected the test in order for the defence to succeed.