Posts Tagged 'internet'

Service of court documents by social media in Ireland

In recent years there has been a steady flow of stories about the service of court proceedings using Facebook or Twitter, for example. The media likes the novelty of these stories but there is no new law involved.

Certain court documents, particularly those which initiate a case or give notice of a hearing, must be served on the other party. The importance of service is not necessarily that the recipient is aware of the full contents of the documents served or every detail of the case. Rather:

the fundamental purpose of service [is] to give the defendant notice and sufficient warning of the proceedings that he might have to contest. (Dixon J, Royal Bank of Ireland Limited v. Nolan)

Here are some examples of service by social media:

  • In 2009 the UK High Court allowed service of an injunction by direct message on Twitter where the message included a link to the full text of the injunction.
  • In 2011 a UK county court allowed service of a court document by Facebook.
  • Australian courts have allowed service by Facebook and LinkedIn.
  • In 2012 a South African court allowed service of a notice to set down a trial by Facebook message, in addition to being published in a newspaper.
  • In 2012 the UK High Court allowed the service of a commercial claim by Facebook (AKO Capital LLP & another v TFS Derivatives & others [2012]).

AKO Capital is a good example because some detail is available from a note on the case by Latham & Watkins. This was a claim against a financial services broker for alleged overcharging and the broker wished to join a former employee as a co-defendant. Before granting permission for service by Facebook the Court sought assurances that the account belonged to the recipient and that he habitually checked the account. For example, evidence was given that he had recently accepted friend requests. The Court ordered that the relevant documents could be sent as pdf attachments to a private message and service was deemed to have occurred 14 days after the message was sent.

On the home front, Mr Justice Peart granted an order for service by private message on Facebook in 2012 where the plaintiff was not able to locate an address, contact number or other means of contact for the defendant apart from his Facebook account.

You’re not doing anything until the solicitor gets here.

This topic surfaces in discussions of “social media law” and similar areas of law, which brings to mind Frank Easterbrook’s “law of the horse” analogy from the mid-90s.

Lots of cases deal with sales of horses; others deal with people kicked by horses; still more deal with the licensing and racing of horses, or with the care veterinarians give to horses, or with prizes at horse shows. Any effort to collect these strands into a course on “The Law of the Horse” is doomed to be shallow and to miss unifying principles. Teaching 100 percent of the cases on people kicked by horses will not convey the law of torts very well. (Easterbrook FH, ‘Cyberspace and the law of the horse’ 1996 U Chi Legal F 207)

Service by social media is just another form of substituted service. Most court rules internationally require that court documentation is served in a particular form, such as by personal delivery or registered post, but also provide that alternatives can be used with the permission of the court. Irish court rules provide for such “substituted service” and nothing in those long-standing rules limits the potential for service by social media.

There are separate but similar rules for each of the Irish courts (District, Circuit, High & Supreme) which provide that an application can be made to the relevant Court for service in an alternative manner where there is a reason why the usual manner cannot be used.

Like many areas of the law, new scenarios can work with old laws and no update is required. However, as can be seen from the evidence presented by the applicant in AKO Capital, the affidavit which grounds the application for substituted service should include more detail than would ordinarily be the case in a standard application. At the very least the Court should be provided with:

  • details of the difficulties in affecting service in the ordinary way and what efforts have been made to do it;
  • evidence to establish that the target social media account is owned by the person upon whom service is to be effected;
  • evidence to establish that the social media account is active within a reasonable period of the application; and
  • details of any relevant technical issues and how they will be addressed (for example, if service was by Twitter direct message, how documents will be accessed by the recipient).

Recent experience in the US suggests that some jurisdictions might not allow service by Facebook alone, for example. The rules in the US states are different from those in Ireland and certainly there is no reason why service in Ireland cannot be effected by Facebook alone, subject to the Court being satisfied on the criteria listed above. If there was a concern about the effectiveness of service, an Irish court could direct some other additional mode of service, as happened in the South African case mentioned above.

The issue of service frequently arises as a potential technicality to defeat proceedings but the Courts can retrospectively deem service to be effective, as can be seen from this reason Supreme Court decision.

Protecting court proceedings from social media

[Updated 6/2/14] The most high-profile white collar crime trial in the history of the State got underway today. This post in not about that case, but rather the impact of social media on court proceedings and reporting. Previously, when the jury for that trial was being selected and sworn in, Judge Martin Nolan made a number of interesting comments which hint at the impact social media and the internet can have on court proceedings.

Jury Cat

[Judge Nolan] told the panel that it is unrealistic to expect them not to have heard of Anglo but said that anyone who has expressed strong views in public should not sit on the jury.

He said that this includes views expressed on the Internet, including Facebook. Judge Nolan said it would be embarrassing for the jurors if it emerged during the trial that they had expressed views on Anglo on such “permanent forums.”

Once the jury had been selected, he warned jurors that they “should not conduct their own investigations into the case or even read up on it. He said he will regard such activity as a breach of the jurors’ oaths.”

The risk that a juror would engage in independent research is not new but it is heightened by social media and the availability of information online. For example, a university lecturer in the UK was jailed for three months in 2012 for researching a defendant online and sharing her findings with the jury.

It is obvious from the comments of Judge Nolan that the Irish judiciary is alert to the risks. With smartphones in every pocket an array of research resources are available to everyone to an extent unimaginable fifteen years ago. The temptation for a juror to google the accused over lunch could be considerable. [In fact, the issue has already arisen: last year a criminal trial in Cork collapsed when the jury foreman informed the judge hearing the case that a juror had learned of information concerned the accused on Facebook and had discussed it with fellow jurors. Judge Ó Donnabháin warned the juror that she could be facing contempt of court proceedings and granted her legal aid in order to engage a solicitor.]

Research by jurors is an issue which the Law Reform Commission has already considered, in their 2013 Report on Jury Service.

The advent of the internet and social media sites, and in particular their ready accessibility through smart phones or Wi-Fi enabled tablets, now provide access to a wide range of materials such as archives of media reports that may have reported on the factual background to a trial, general information on scientific matters that might arise in a trial (such as DNA evidence) and a huge array of general commentary such as blogs and other material from social media. This information can contain prejudicial material, and has the potential to impact on the right to a fair trial. In recent years, trial judges have incorporated specific comments to the jury not to access information regarding the trial through internet search engines or social media.

The Commission recommended that specific reform was needed to deal with juror misconduct in carrying out “extraneous investigations” using the internet and social media. Their report includes a draft Juries Bill 2013 which includes, in section 39, an offence of making inquiries about the accused or any other matters relevant to the trial. “Making an inquiry” is defined as including “conducting any research, for example, by searching an electronic database for information (such as by using the internet), viewing or inspecting any place or object, conducting an experiment or causing someone else to make an inquiry.”

The proposed penalty, however, is a Class B fine on summary conviction – currently a maximum of €4,000. Under the existing law, referred to by Judge Nolan, such research could be a breach of the juror’s oath and result in a finding that they are in contempt of court. Such a finding could lead to a prison sentence, as has happened in the UK. I suspect that the proposal by the LRC is intended to highlight the issue for jurors and while the draft Bill is only a suggestion, one would think that a stronger maximum penalty is warranted.

Inappropriate contact between parties to proceedings is another risk, referred to by Gerry Curran in the Courts Service News in 2012.

Examples of flagrant abuse of this exist [internationally], including the appearance of disparaging remarks about other jurors on social media sites and jurors ‘friending’ each other on Facebook, trying to ‘friend’ counsel for either side and even ‘friending’ defendants in cases they were serving on.

This might appear unlikely to some readers but anyone who has maintained social media accounts for a few years is likely to have received more than one unexpected friend request. Juries already get warnings about discussing cases, but Judges may have to spell things out for jurors. According to Curran:

“[Studies suggest] that the magnitude of social change caused by social media requires the judge to adopt additional specificity when giving instructions. Brand names of social media need to be used as people are so used to using them as an extension of thought. It is also important to emphasis the fair trial element of the instruction – as the same familiarity might well cause a feeling in the juror of giving up a personal freedom in not communicating.

As if the courts don’t have enough on their plate worrying about the conduct of juries, court orders can of course be broken by members of the public. In the UK in 2013 two men received suspended sentences for posting photographs allegedly showing the now-adult killers of James Bulger, in breach of an injunction, on Facebook and Twitter (AG v. Harkins & Liddle [2013] EWHC 1455 (Admin)). That decision shows the relative speed and success with which the UK authorities have kept on top of the issue and no doubt will act as a deterrent in future.

Whatever about jurors, journalists have certainly taken to social media and many provide interesting updates in between various court hearings. [In fact, the Irish Times is liveblogging the Anglo trial.] Curran notes the risks:

Live ‘tweeting’ is akin to broadcast – it is sent with no delay, there is no taking it back, and no limits to dissemination. But what if soon after a courtroom tweet a judge rules something inadmissible, or to be ignored by the jury, or is patently shown to be a lie? In the UK guidelines effectively limit the use of Twitter to accredited media, who apply to do so and who, of course, are familiar with the court process and the consequences of endangering same.

Again, these risks are not necessarily new: a journalist might deliver an update on radio news during a lunchtime broadcast which includes material which might later be ruled on by the presiding judge. Journalists, of course, have expertise in dealing with court reporting and generally are sensitive to what should and should not be reported depending on the stage the case has reached.

Very meme

Nevertheless, recent developments certainly suggest an aversion to live tweeting or “contemporaneous reporting”. In the high profile surrogacy guardianship case  (M.R & Anor v. An tArd Chlaraitheoir & Ors [2013] IEHC 91), the appeal of which is currently being heard by the Supreme Court,  Mr Justice Abbott directed that the case be heard otherwise than in public but that certain journalists be allowed to attend and report on the hearings subject to a number of conditions, including that “no contemporaneous social media reporting e.g. by Twitter shall be carried out”. [I am not sure how the Irish Times liveblog of the Anglo trial is maintained but such a blog could constitute contemporaneous social media reporting.]

Similarly, family law proceedings have now been opened up to the media who can report cases so long as the parties are not identified. New guidelines on reporting of such cases prohibit live-tweeting (although the Courts and Civil Law (Miscellaneous Provisions) Act 2013 do not contain the prohibition). Those guidelines appear to have been circulated to judges but not, to my knowledge to date, to lawyers and they don’t appear to be available on the websites of the Minister for Justice or the Courts Service.

As with many areas of the law, it is enforcement rather than any new measures themselves that will be interesting. Recent experience in the UK is of effective detection and prosecution of offences followed by serious penalties. The Anglo trial, which will last for months and be of intense media interest, may provide the first real test for the Irish court system in dealing with these dangers.

The Circle (a rare book review)

The CircleSam Seaborn (or Aaron Sorkin) said it in 1999: “The next 20 years will be about privacy.” So it’s not surprising that serious authors will tackle the issue, as Dave Eggers has now done in The Circle.

The eponymous company in The Circle is quite obviously Google, or a successor to it. It dominates the internet and begins to dominate the world. Its name is apt, for the purposes of a book if not a real company: the Circle is closing in on us, one ring to rule them all, as it were.

Much discussion of the book has consisted of a misguided complaint that it lacks authenticity. Critics have made the absurd argument that because Eggers is not an insider it is not a valid portrayal. The complaint appears to be that he has not faithfully represented the internet, or Silicon Valley, as they exist (or are perceived to exist) today. This Wired review misses the point entirely.

In his desire to create a world where The Circle rules all, Eggers creates so many extremely unlikely or outright impossible scenarios that happen simply because he needs them to happen. As they stack up through the course of the book, it gets harder and harder to take it seriously even as satire until finally it becomes outright fantasy, with only a tenuous connection to reality as we know it.

It is true, to an extent, that some things happen because Eggers needs them to happen. Call it artistic licence or call it deus ex machina: an author is entitled to move a plot forward. Wired want a book about technology, which The Circle is not. Neither is it quite true that the book strays into the realm of fantasy; but even if it did, is that not a valid way of exploring the issues raised?

The Guardian, less obsessed with fidelity to the tech industry, struck the right note:

It’s not clear whether The Circle is intended as a satire of the present or a dystopian vision of the near future. Eggers’s writing is so fluent, his ventriloquism of tech-world dialect so light, his denouement so enjoyably inevitable that you forgive the thin characterisation and implausibility of what is really a clever concept novel.

The quality of the prose is not quite as the Guardian would have you believe and certainly does not match his earlier works. The Circle is patchy and clumsy in places (never in literature was a shark jumping pun more deserved). It is Crichtonesque and notably screenplay-friendly, but it fails to meet the standards set by either Crichton or Eggers himself. The Wall Street Journal sums it up well:

The Circle is not great literature. But it is a great warning—one that you’ll be hearing a lot more about.

The book is not interesting because of its prose or its authenticity: it is an allegorical tale, “a clever concept novel”. The allegory is not subtle and the tale is not particularly inventive, but nevertheless, even where the plot seems to overstretch, such as in the messianic monologues of The Wise Men, one does not have to go far to find similar statements and ideas already out there.

The Circle aims for “completion”, a state of complete “transparency” in society which effectively eliminates private spaces. Everyone has full access to everyone and everything else. That critics view this eventuality as being far fetched is astounding. For years now influential figures have formulated a philosophy of voluntarily limited privacy. In this profile of Mark Zuckerberg published by the New Yorker in 2010, a media and communications specialist at Microsoft Research outlined a key element of Zuckerberg’s views on privacy:

This is a philosophical battle. Zuckerberg thinks the world would be a better place—and more honest, you’ll hear that word over and over again—if people were more open and transparent.

In The Circle, it is as if Eggers has taken this quote and run with it. The book merely ties together a few strands that are already hanging out there today and develops them to a reasonably logical conclusion: how would people behave following a period of sustained erosion of privacy, cataloging of all information and aggressive privitisation or outsourcing of public services?

Zuckerberg, according to some, doesn’t believe in privacy. His response?

Zuckerberg defended the change — largely intended to keep up with the publicness of Twitter, saying that people’s notions of privacy were changing.

There are, generally, two primary ways the situation is currently viewed. In Zuckerberg’s articulation we have voluntarily modified our behaviour and our expectations of privacy. On the opposite end of the spectrum, as recently articulated by Eugene Kaspersky at the Dublin Web Summit, privacy can never be guaranteed online so you modify your behaviour accordingly. Either way there is grim inevitability.

“There is less and less privacy now. Fifty years ago, if governments and private companies were watching peoples every move there would have been huge protests,” he added.

A speaker at the same event pointed out that, despite the Snowden revelations, “nobody seems to care”, a view which arguably supports Zuckerberg’s vision of privacy.

In The Circle, the ability to modify behaviour and maintain privacy is challenged as the Circle closes in on everyone. Mercer, the totemic refusenik of the book, tries to live outside of the Circle and, in partly comic fashion, it closes in on him too.

Google’s long-stated aim has been to make the world, not just the internet, searchable. This can be achieved only by putting more information online and Google have been active in digitising libraries and cultural institutes to that end. Add in years of your emails and documents and they range of analyses they can perform are significant. The book addresses the issues raised by the digitisation of old information.

In Ireland, we are finally getting around to introducing a law on “spent convictions”. According to Remy Farrell SC:

as time passes the relevance of a person’s previous convictions diminishes to the point that they should be ignored.

Should a similar principle be said to exist in relation to information? Data protection law already requires that personal information should not be kept for longer than necessary; but how long is that? If you set up a Bebo account in 2005 which is now dormant but you have never deactivated it, at what point should there be an obligation on Bebo to shut it down and remove your photos from public view? At present, the European Union is preoccupied with “right to be forgotten” which, in The Circle, becomes the stated “right to disappear” of a high profile objector.

The Circle addresses, but does not fully confront, the manner in which the new global surveillance society is coming about: as a trade-off. You exchange your personal information for useful “free” services. You exchange your personal liberties for useful security services. The book presents the ultimate trade-off: what would you trade to stop child abduction?

Elements of The Circle that seem fanciful, such as politicians and individuals becoming “transparent” by voluntarily wearing webcams which broadcast at all times, seem less preposterous as technologies like Google Glass emerge. Adrian Weckler, reporting on the Web Summit, recently ran into Robert Scoble roaming the RDS wearing Google Glass. He mentioned, in jest, that you could not be sure if he was recording you or not.

These technologies initially take off due to their “cool” factor. They gain critical mass and then the trade-off comes: why don’t you want to be transparent? What are you hiding? Eric Schmidt has already made outstanding statements:

If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place, but if you really need that kind of privacy, the reality is that search engines including Google do retain this information for some time, and it’s important, for example that we are all subject in the United States to the Patriot Act. It is possible that that information could be made available to the authorities.

The “nothing to hide, nothing to fear” argument is Orwellian, oppressive, ridiculous and easily debunked. But it persists. Schmidt suggests privacy is some personal foible or luxury that you might unreasonably insist on, not a basic human right which, by the way, is enshrined in numerous laws.

An interesting aspect to corporate attitudes to privacy is the reaction of Google and others to the Snowden revelations. Google and Facebook believe you should be transparent, that you should put as much as your life online as possible and open that up to as many people as possible while also allowing them to analyse the information and your interactions with others. But when it is revealed that the NSA may be carrying out some analyses of their own by using backdoors to their systems, it’s a different matter.

“We have long been concerned about the possibility of this kind of snooping, which is why we have continued to extend encryption across more and more Google services and links, especially the links in the slide,” he said.

“We do not provide any government, including the US government, with access to our systems. We are outraged at the lengths to which the government seems to have gone to intercept data from our private fiber networks, and it underscores the need for urgent reform.”

So, Google’s chief legal officer says they don’t provide access to their systems. But just a few years ago, pre-Snowden, Google’s then-CEO warned that information retained by Google could be made available to the authorities. They want to ensure that your data is protected from others, but not themselves.

What is particularly confusing and contradictory about the current erosion of privacy is the extent to which corporate, institutional and governmental secrecy is on the rise. We are told to accept limits on our personal freedoms in exchange for security while also being told to accept limits on the transparency of organisations for the same reason. Glenn Greenwald is the cause célèbre:

I really urge everyone to take note of, and stand against, what I and others have written about for years, but which is becoming increasingly more threatening: namely, a sustained and unprecedented attack on press freedoms and the news gathering process in the US. That same menacing climate is now manifest in the UK as well, as evidenced by the truly stunning warnings issued this week by British Prime Minister David Cameron.

Attacking press freedom attacks the citizen’s ability, and right, to know what is going on. Transparency is for Us, it seems, but not for Them.

The Boston Globe’s review of The Circle begins:

When I finished reading Dave Eggers’s chilling and caustic novel, The Circle, I felt like disconnecting from all my online devices and retreating for a while into an unplugged world. I gather that’s what he had in mind.

I didn’t have that reaction. Rather, I was angry at the reaction of publications like Wired who so easily dismiss it. We have already sleepwalked into an era of eroded privacy and astounding information storage. It is not at all unlikely or impossible that the trend will continue. There have been a number of horrific privacy breaches over the past years that should make people question the extent to which they engage with online services or which might have led to changes in those services, but it hasn’t happened. Sometimes a work of fiction is needed to allow people to think about these issues outside of the dense worlds of tech and law.

Instagate

InstagramInstagram has courted controversy this week by announcing changes to its terms and conditions. There are clauses in Instagram’s new terms which are likely to cause them difficulty with privacy and advertising regulators but the most controversial new terms are that:

  • Instagram will have a full licence to use your photographs, including to sub-licence or transfer use of them; and
  • customers of Instagram (that’s advertisers, not you) can pay to have your name or photos (along with other information) displayed in advertising messages, without paying you or even notifying you.

Changes to intellectual property terms on free online services have long been a source of controversy, not least because when services like Instagram are involved many of the users are involved in creative industries. Even if a user is not a creative professional, the service involves the creation of intellectual property. Mess with those users’ rights at your peril.

Of course, blame for these changes is being laid firmly at the door of Facebook who famously paid through the nose to acquire Instagram. While the new terms are not surprising, given the involvement of Facebook, whoever owned Instagram was always likely to attempt such a change in order to monetise the business.

If the online reaction is anything to go by, the changes are a boon for Flickr. The death knell of that service had been sounding for some time but it, and its new app which has launched with serendipitous timing, could see a significant return of dormant users. I have noticed a surge in activity in the past few days as Instagram users have returned to Flickr and began uploading photos for the first time in months while also seeking out contacts from the Instagram universe.

But what do Flickr’s terms say?

With respect to … Content you elect to post to other publicly accessible areas of the Services, you grant Yahoo! the royalty-free, perpetual, irrevocable, non-exclusive and fully sub-licensable right and licence to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such Content (in whole or part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed.

The difference between this and what Instagram’s terms will say is not clear to me, apart from the fact that Instagram are more explicit in what they plan to do with your photos. Neither is it clear if a Flickr account which is set to private constitutes a “publicly accessible area of the Services”.

Strangely, this does not appear to be the situation in the US, where their local version of the Yahoo!/Flickr terms are limited and provide a licence “solely for the purpose for which such content was submitted or made available.” This limitation does not appear in the terms applicable in Ireland. So is there any difference between Instagram and Flickr?

The strange, hypocritical attitude of the Irish Government to copyright, the internet and citizens

[Updated, at end] The introduction yesterday of an amendment to the Copyright & Related Rights Acts has been in the works for a long time (posts here, here and here). The issue has generated quite a bit of heat on both sides and the Government would do well to observe that opponents to the law have not held a monopoly on intemperate comment.

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.

Stop SOPA Ireland

I’ve written some posts before on Irish developments in the music industry’s new approach to copyright infringement (targeting ISPs). A ministerial order which would provide the courts with wide, unspecified powers to control internet companies seems to be on its way. It has spurred an impressive grassroots protest movement into action, taking its name from the similar, recently-stalled US proposals.

Read about the issue here:

Register your protest here:

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.

Twitter and corporate accounts

The Daily Business Post

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.

In summary, while the issue is somewhat untested in Ireland, employment contracts and policies are likely to be crucial in cases of this nature. There may be something of a split between ownership of a twitter account and ownership of tweets.

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

New data protection rules on cookies & mandatory data breach reporting for electronic communications providers

 

From George Eastman House

Not those kind of cookies.

Last week, the Minister for Communications, Energy and Natural Resources signed a group of statutory instruments into law which transpose the EU telecommunications reform package.

Among those regulations are the European Communities (Electronic Communications Networks and Services)(Privacy and Electronic Communications) Regulations 2011.

The Regulations are lengthy but the Data Protection Commissioner already has a guidance note online outlining the changes introduced, the most significant being:

  • Compulsory notification of individuals and the Office of the Data Protection Commissioner in the case of data breaches
  • More stringent requirements for user consent for the placing of “cookies” on electronic devices
  • Stricter requirements for the sending of electronic marketing messages and the making of marketing phone calls

I previously wrote about mandatory reporting of data breaches in the context of general data protection law (rather than sector-specific rules).

Leo Moore (William Fry) points out that the new rules on cookies do not provide for a lead in time, as was the case in the UK. This will put pressure on operators subject to the rules to get their house in order quickly. He notes:

Website operators and other interested parties are keenly following how the Cookie Regulations will be interpreted and enforced in Ireland in light of the need to obtain website user consent each time a cookie is placed on a website user’s computer. Many such parties have concerns in relation to the practical implications of complying with such obligations.

For more, try following Ronan Lupton (ALTO), TJ McIntyre (UCD/DRI), Leo Moore (WF) & David Cullen (WF) on Twitter.

Department of Jobs, Enterprise & Innovation (brief) consultation on filesharing injunctions

[Updated 23/06/11] In the (literally) last days of the previous Government, a rumour shot around that the then Minister for Enterprise, Trade and Innovation was about to sign a statutory instrument into law which would address the gap in the law criticised by Mr. Justice Chartleton in the EMI & ors v. UPC case.

A firm denial was issued by the Minister but I’m not sure anyone really believed that a draft SI wasn’t floating around somewhere. Anyway, the newly-titled Department of Jobs, Enterprise & Innovation has put a draft SI out to consultation. The relevant SI text is below.

Deadline for submissions is 1 July 2011: less than 2 weeks from today. That’s pretty swift consultation by any standard. Apparently the Department received a number of requests for an extension to the consultation period, so the new deadline for submissions is Friday 29 July 2011.

New section 40(5A) of the Copyright & Related Rights Acts:

(5A)(a) without prejudice to subsections (3) and (4), the owner of the copyright in the work concerned may apply to the High Court for an injunction against a person who provides facilities referred to in subsection (3) where those facilities are being used by one or more third parties to infringe the copyright in that work.

(b) In considering an application for an injunction under this subsection, the court shall have due regard to the rights of any third party likely to be affected and the court shall make such directions (including, where appropriate, a direction requiring a third party to be put on notice of the application) as the court may deem necessary or appropriate in all the circumstances.

New section 205(9A) of the Copyright & Related Rights Acts:

(9A)(a) without prejudice to subsections (7) and (8), the rightsowner may apply to the High Court for an injunction against a person who provides facilities referred to in subsection (7) where those facilities are used by one or more third parties to infringe any of the rights referred to in Parts III and IV.

(b) In considering an application for an injunction under this subsection, the court shall have due regard to the rights of any third party likely to be affected and the court shall make such directions (including, where appropriate, a direction requiring a third party to be put on notice of the application) as the court may deem necessary or appropriate in all the circumstances.

Thanks to Ronan Lupton for bringing the consultation to my attention.

Privacy and the press

I wrote a short article for last week’s Sunday Business Post on the super-injunctions story and the conflict between freedom of speech and privacy. It appeared in the Computers and Business magazine and is available here.

It’s a difficult topic to tackle in a short article and some more thoughts on the issue are in my earlier rambling blogpost. However, Karlin Lillington dealt with the issue expertly in last Friday’s Irish Times by contrasting the UK super-injunctions saga with the Irish experience of data protection and retention laws.

PRIVACY HAS two definitions. There is the definition that applies if you are wealthy, or a celebrity, or a corporation or organisation, and you wish carefully to protect from the public eye your infidelities, personal peccadilloes, ethically questionable activities, illegal doings or other foibles that might damage your income, reputation or bottom line.

Then, there is the definition that applies if you are just an ordinary citizen and a bank, an insurance company, an electronics manufacturer, a telecommunications company, a law enforcement agency, a government department or other organisation holds or would like to view lots of potentially sensitive information about you.

If you are in the former, elite group, lucky you. You will find you are entitled to all sorts of perks and privileges when it comes to your special definition of privacy. Your national government may come up with laws specifically to protect your version of privacy.

Justice systems may invent special protections that mean not only is no one allowed to mention whatever it is you or your company is said to have done, but no one is even allowed to mention that such a legal protection is there in the first place.

Social media and internet companies may, despite public statements about valuing their users and freedom and democracy, relinquish information about the people who might have said something annoying about you, your company or your government, the better to enable the justice system to get these aggravating people off your back.

If you are in the second group, your privacy is too often a commodity.


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Hello. #westlimerick #glenastar

West Limerick hills on a Summer evening. #nofilter

If ever passing through Newcastle West, stop for a stroll around the Castle grounds. Lovely on a day like today.

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A snap for Editor_Tupp @tupp_ed

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