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.

Still, I was struck by one small cut reported on last Saturday.

SAFE IRELAND, the national body representing domestic violence refuges and services, has had its core funding cut by 100 per cent.

The 25th of November to the 10th of November is the international 16 Days of Action campaign aimed at highlighting and opposing violence against women.

The news of that cut became public at the outset of this year’s 16 Days campaign.

The Labour manifesto for the 2011 election stated:

Labour is committed to tackling and eradicating domestic violence. We will protect funding for frontline services, such as family refuges …

That was 9 months ago. Three weeks ago, the Minister for Justice said in the Dail:

all reasonable efforts will be made by my Department to continue supporting the provision of services dealing with domestic and sexual abuse within available resources.

Now, the defence of this cut will be that it does not affect frontline services: SAFE Ireland doesn’t provide them. And, to be fair to Minister Shatter, the cut was not made by his department but by one run by a party colleague. Nevertheless, the work of SAFE Ireland was important and the funding not excessive. In fact, the move by the HSE appears to be a redirection of funds rather than a full cut. According to the director of SAFE Ireland:

[The HSE] say they are going to use the money instead to commission a number of pieces of work towards the implementation of their action plan on domestic violence.

Which, surprisingly, appears to be quite similar to the work that SAFE Ireland was doing:

SAFE Ireland is part of the implementation infrastructure for the delivery of the government strategy on domestic, sexual and gender based violence.”

This may be the shape of things to come: the economic environment used as justification not only for cuts in funding to NGOs and service providers who rely on State funding, but also as justification for the redirection of remaining funds to consultants and in-house services.

PS: For more on the 16 Days campaign in Ireland, see the Women’s Aid blog and the calendar of events for Limerick at the Mid-West Violence Against Women Network.

seek[s] to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured [and] true social order attained.

Some people don’t like that the system exists at all. Others dislike the cost. A small number of lawyers make a lot of money from the legal aid budget, but they tend to work exclusively in criminal defence. And they work hard: criminal defence is far less profitable than many other areas of law, including areas that consume far greater amounts of taxpayer funding.

An email has been circulated among criminal defence lawyers proposing a Criminal Law Practitioners Union (CLPU) to lobby and negotiate with the Government on the system of criminal free legal aid. The email says that, when the next round of cuts are implemented, the fees paid for criminal legal aid will have been cut by up to 50% of their 2007 level.

Cuts of this magnitude will put a large number of [criminal legal aid lawyers] out of practice and seriously undermine the fair and proper administration of justice in criminal law. Cuts of this magnitude are unfair and unjust and impose a greater burden on us than on any other ‘public service sector’.

Two points are involved here: the public interest argument and the private interest argument. The latter doesn’t interest me and will not find much sympathy with the public. But this issue is not about incomes: lawyers are also professionals who want to represent their clients’ interests, not just in court but before they reach it.

For example: it has long been the practice of the Department of Justice to pay defence counsel the same fee as the prosecution. Equality of arms is an important principle, but the Department recently abolished it for criminal trials and imposed a 10% cut on fees paid to defence counsel (ie. 10% less than what is paid to prosecution counsel by the Director of Public Prosecutions). [Edit: I agree with this letter-writer to the Irish Times. Cuts should be equal.]

Quite obviously the only reason that we are very much the ‘poor relations’ in the courts system is because our clients are voiceless and so are we. (My emphasis)

The email seeks support for the CLPU to negotiate terms and conditions of a contract with the Department of Justice for legally aided criminal defence. I would expect that the CLPU will run into competition law issues but the email states that nothing will be done to distort competition.

The email suggests a picket on the courts as a final measure to protest further cuts. This will inevitably be the focus of headlines and the move would be reported by the media as a strike to protect the income of lawyers, rather than a strike to protect the interests of justice. A serious public interest issue is at stake and is unlikely to receive the quality of discussion and debate regularly achieved in the UK.

(As I finalised this blog post, this article published on the Evening Herald website. The headline provides a taste of the tone of coverage to come.)

The timeframe for action is tight, and apparently over 100 lawyers have already indicated an intention to join the CLPU (around 30 of whom are solicitors).

In the meantime, it remains unclear what has become of the last government’s mad proposal to move responsibility for the criminal legal aid system to the Legal Aid Board. However, Brendan Howlin’s Ideas Campaign-style search for solutions has apparently generated the suggestion that inexperienced law graduates “be deployed” to the legal aid system.

Recent Irish governments have been into the habit of introducing “miscellaneous provisions” legislation: acts which contain a series of unconnected amendments to existing laws. Usually, the amendments have been on the long finger for some time or have arisen as a matter of urgency. Such legislation is often passed just before the Summer recess.

The Civil Law (Miscellaneous Provisions) Act 2011 is such a law and covers diverse areas of the law like private security services, equality, family law, the sale of alcohol, rights of way, personal bankruptcy, tribunals of inquiry and eligibility for appointment as a taxing master.

One area covered, which was expected in a stand-alone act, is the law on good Samaritans. Up to now, there was no legislation on the issue. A private members bill was introduced in 2005 by then-opposition TD Billy Timmins (FG, Wicklow) which spurred the Government to request a report from the Law Reform Commission.

That report was published in 2009 and Mr. Timmins (still in opposition) returned with a new private members bill. His 2009 proposal was, in fact, the law as proposed by the Law Reform Commission and by introducing it to the Oireachtas before the Government some additional pressure was exerted to act. Legislation was expected last year but, as with many areas of law and policy, one assumes supervening events disrupted the legislative programme and the last government never got around to it.

The 2011 Act essentially provides that good Samaritans will not be personally liable for anything done while assisting someone ill, injured or in danger. Volunteers will be similarly protected from liability when carrying out volunteer work. Of course, there are exceptions and, for example, the protection from liability is lost in the case of malice or gross negligence.

The changes do not introduce into Irish law a duty to intervene. This is in line with the recommendations of the Law Reform Commission, who concluded that, in Irish society, the duty to intervene was of a moral rather than legal quality and essentially should remain that way.

A duty to intervene can arise under Irish common law where a particular relationship exists between the parties which would justify it (Chapter 2C of the LRC report addresses this area). The Law Reform Commission recommended introducing a statutory duty of care on the part of volunteer organisations, but the 2011 Act only requires that, when considering  whether a volunteer organisation owed a duty of care to someone, a court must consider whether it is just and reasonable to impose a duty “having regard to the social utility of the activities concerned.”

The 2009 private members bill contained the Commission’s proposed duty of care for volunteer organisations so it is not clear why the Government did not incorporate that wording.

Nevertheless, although lawyers are not generally fans of miscellaneous provisions legislation, the Government must be commended for acting on the issue. Through Mr. Timmins, Fine Gael have highlighted the foot dragging on this issue and have now addressed it within a reasonable time of taking office.