Month: September 2009

The Kingdom’s Green and Gold

I won’t pour salt on the wounds of Cork supporters by further celebrating Kerry’s win in the All Ireland final on 20 September last (a topic already adequately addressed and which continues to appear in the papers).

However, this year’s All Ireland came with an additional thrill thanks to RTÉ’s Up For the Match, broadcast the night before, which featured a performance and dramatic enactment of Dúchas, or The Kingdom’s Green and Gold, a ballad written by my late father Garry, founder of Patrick G. McMahon Solicitors and two-time All Ireland medal winner for Kerry (1959 Kerry 3-7 Galway 1-4; 1962 Kerry 1-12 Roscommon 1-6). You can see Garry score the fatest goal ever scored in an All Ireland final in this Pathé newsreel of the 1962 final (generally said to be around 34 seconds into play but the exact number of seconds appears to vary!).

The show is available to view here on the RTÉ Player until 10 October 2009. A recording of the song by Garry is available for download here.

Dúchas
You say tradition counts for naught when two teams take the field,
I fear you are mistaken, lad, but the years will make you yield,
And when your hair’s as grey as mine, and time has made you old,
Then you’ll invoke the truth I spoke of the Kingdom’s green and gold.

You cannot box or bottle it, nor grasp it in your hand,
But pride of race and love of place inspire a love of land
Time honoured is our birthright, we’ll never break the mould,
It’s deep within the soul of us, who wear the green and gold.

Grey lakes and mountains soaring high, Mount Brandon‘s holy hill,
The little church at Gallarus, our language living still,
The Skellig Rock, stout football stock, they can’t be bought or sold,
For our county’s fame, we play the game in the Kingdom’s green and gold.

And when the battle’s fiercest and the fortunes ebb and flow,
We’re still alive, we can survive, we never will let go,
For the spirit of our fathers and of stories yet untold,
Will lead us on to victory, in the Kingdom’s green and gold.

We savour Kerry victories, we salute a gallant foe
And when we lose, there’s no excuse, we pick up our bags and go,
So raise your glass each lad and lass to our warriors brave and bold,
Who again aspire to the Sam Maguire in the Kingdom’s green and gold.

© Garry McMahon

European small claims

I recently wrote about the small claims procedure in the Irish District Court. Of course, this procedure might be of no use to the Dan Brown fan buying his latest oeuvre online from England or the oenophile stocking up on crates of touraine while on holiday in France.

Not to worry, Regulation 861/2007 established a European Small Claims Procedure applicable to all EU Member States (except Denmark) which will be of use to a lot of such people. A guide to using the procedure has been published in the UK (via Out Law) and the European Commission has a simple guide, available here.

Note: Anyone buying goods or services online as a consumer should familiarise themselves with their rights (including to a cooling off period during which an order can be cancelled). If the vendor does not properly inform you of your rights, the law is usually on your side in the event of a problem.

The Citizens Information website has the relevant information here.

US laws to thwart libel tourism

An interesting letter in today’s Irish Times from Rachel Ehrenfeld of the American Center for Democracy points to recent developments in US law which attempt to thwart international libel tourism.

It seems the New York Libel Terrorism Protection Act (the Americans are quite fond of dramatic titles for their legislation – though, according to Wikipedia, the title is a misnomer) was a result of such litigation against Ms Ehrenfeld and prevents the enforcement of foreign libel judgements in New York unless the jurisdiciton in which the judgement originates provides the same level of free speech as New York. The ‘victim’ of libel tourism can also petition the New York courts to have the foreign judgement declared unenforceable.

The Free Speech Protection Act, currently a Bill at the early stages before the US Houses of Congress, introduces similar measures on a federal scale.

It would be interesting to know if our recently-enacted Defamation Act 2009 would pass the American test – unfortunately, the point does not arise in the context of Ms Ehrenfeld’s discussion. According to the Times, at least, on the passing of the Act:

The changes will bring defamation into line with the norm of the civil law. Newspapers can make an apology when they know they have got things wrong without admitting liability. Judges can give directions to a jury in assessing damages and parties to the proceedings can make submissions on their scale. All plaintiffs have to file an affidavit to verify the particulars of their defamation claim, thus neutering the common “gagging writ”. These, and other reforms, are important changes in the processing of defamation actions after they arise.

Refreshing news from the Scottish Government

Via Out-Law, the Scottish Government plans to reduce the amount of personal data it collects.

[The Government] has proposed a set of Identity Management and Privacy Principles with which public bodies will have to comply. The principles move the Scottish Government away from the trend of building very large public databases of personal information.

“Organisations should avoid creating large centralised databases of personal information and store personal and transactional data separately,” said a statement outlining the plans. “People should only be asked for identity when necessary and they should be asked for as little information as possible.”

This chimes with the requirements of the Data Protection Directive, implemented in Ireland by the Data Protection Acts 1988 and 2003. Section 2(1)(c) requires that personal data is collected only for specified, explicit and legitimate purposes. This data cannot be further processed in a manner incompatible with that stated purpose and the data must be relevant and not excessive. Neither should it be kept longer than necessary.

The new Scottish approach is in marked contrast to the data-hungry attitude of most government agencies, including our own. For example, the PPS numbering system, originally intended only for the administration of social welfare payments and tax deductions, has balooned into a general purpose citizen ID number. In the UK there has, at least, been extensive debate about the merits of a scheme of national IDs but in Ireland a de facto national ID system is creeping in around the edges.

In addition to the provisions of the Data Protection Acts, the Social Welfare Acts and the PPS code of practice published by the Department of Welfare govern the PPS system. The most important provision of the Social Welfare Acts in this regard, and one which does not appear to be widely appreciated, is section 223(6), which states that it is an offence to use or request a PPS number from someone unless specifically entitled to do so (e.g. by being a State agency named in the Acts). Nevertheless, it is routinely sought by private sector entities and professionals without specific thought as to whether the number is required in the transaction. State agencies appear to be satisfied that they are entitled to seek PPS numbers if they are listed in the Social Welfare Acts, regardless of the implications of the Data Protection Acts.

The gradual extension of the PPS system allows for the collation of vast amounts of data by Irish government agencies. Irish politicians should adopt the Scottish approach and decide that a positive policy should be implemented which ensures that agencies request information only when it is both relevant and necessary.

Will business small claims be possible online?

In May, Leo Varadkar (FG/DW) introduced a private member’s bill, the Small Claims (Protection of Small Businesses) Bill 2009, which proposes to make two important changes to the Small Claims Court (“SCC“). The SCC it allows individuals to take a court case, with or without without legal representation, against another party relating to consumer goods or services, damage to property or the non-return of a deposit for a holiday home.

At present, the Small Claims Court (a division of the District Court) will only deal with claims worth up to €2,000 and an indivudal can take a case by paying a fee of only €15. Cases can also be initiated online and the system is particularly suited to online processing as the claimant can, for example, ensure that it has identified the correct person to sue by being referred to the website of the Companies Registration Office to check the business’ details. If the case is contested and is not settled the local District Court Registrar can become involved and try to resolve the matter and if this doesn’t happen the case can go ahead to the District Court itself for a hearing.

In reality, cases rarely reach the District Court and the SCC is, therefore, a great value remedy for consumers which often helps resolve relatively minor issues. The Courts Service has even published guides to the SCC in all major languages.

Deputy Varadkar has made two proposals to amend the SCC and the government has indicated its approval, in principle, to the changes. The first is to increase the maximum value of a claim which can be brought before the SCC to €3,000. The second proposal, which might have been controversial but does not appear to be so, is that small businesses may be permitted to use the SCC to recover debts. The motivation for such a change is the pressure that Ireland’s economic deterioration has put on our small businesses, some of whom may not be in a position to pay legal fees for the recovery of debts. The suggestion is not without merit, but it is an open question as to whether it is appropriate to allow a distinctly consumer-oriented system be used, in some cases, against consumers. It is also unclear as to whether additional resources will be provided to the District Courts to process business SCC claims when, as is likely, small businesses use the system en masse.

The Bill and explanatory memorandum do not state whether it will be possible for business claimants to use the online claims system (and it would not be necessary for this to be stated in the Bill), but if the changes go through there is no reason why this won’t happen.

Deputy Varadkar hoped for the Bill to be back in the Oireachtas in the coming months.

PS. The Bill would appear to be incorrect in seeking to amend Order 53A rule 1 of the District Court Rules as it refers to the version of rule 1 that existed prior to its amendment by the District Court (Small Claims) Rules 2007. Those 2007 rules increased the maximum level of claim to €2,000, whereas Deputy Varadkar’s 2009 Bill still refers to the pre-2007 limit of €1,269.74. It is also notable that the SCC rules are usually amended by way of Statutory Instrument approved by the Minister for Justice, whereas primary legislation is proposed for the new changes.

Citizens Information

The Citizens Information website is a tremendous and under-appreciated source of general information for everyone. In does-what-it-says-on-the-tin fashion, the site sets out, in clear language, information on legal rights, social welfare entitlements; essentially everything concerning the interaction between citizens and State. The site is regularly updated and highlights topical information on its homepage, including where to go for details of the Lisbon Treaty or the report of the Commission on Taxation. Many of its most timely articles relate to current economic difficulties and a mircrosite has been launched for the recently-unemployed.

Another piece of information recently highlighted which is timely: how can a consumer terminate a hire purchase agreement?

“A consumer (the hirer) can terminate the hire purchase agreement at any time by giving notice in writing to the owner of the goods (the finance house). Consumers should be aware that breaking a hire purchase contract before its normal end date usually involves penalties. The consumer can either:

pay half the amount of the total hire purchase price (if the total of instalments already paid have not reached that amount) and return the goods to the owner. If the goods in question are damaged in any way, the consumer will be liable to pay for any damage caused. The finance house may issue a notice of costs, but consumers should try to get their own estimate in such cases.

buy the goods earlier than planned. The consumer can own the goods by paying the difference between the amount already paid and the total hire purchase price. In such cases, there is usually a reduction on the overall amount due as the loan is being paid off earlier than planned. This reduction is calculated using a recognised formula for early loan repayments, however, the amount of any reduction is relatively small.”

German government moves on Google book settlement

via Out Law:

“We hope that the court strikes down the approval of the settlement in the class-action suit, or at least excludes our German authors and publishers from the so-called class so the settlement has no impact on them,” German justice minister Brigitte Zypries told German newspaper Handelsblatt this week.

Apart from a few articles in the Irish Times (e.g. a recent Irishman’s Diary, which notes the benefits to Google’s mass-digitisation project), there is little evidence of public awareness in Ireland of the settlement and its impact on authors and publishers. This is likely to change only if the settlement is approved at the next hearing on 7 October. In the meantime, publishers (e.g. the O’Brien Press and Mercier Press) are monitoring the situation but they might feel understandably powerless in the tracks of the contemporary behemoth that is Google.

The European Commission has been “hearing” about the issue and now the Germans have made a move. It was remarkable that the US settlement could proceed with such worldwide effect, but perhaps this development will spur further European action.

Does your computer need a TV licence?

Probably, if you use a TV tuner (like this one).

According to the Broadcasting Act 2009, a television is:

“any electronic apparatus capable of receiving and exhibiting television broadcasting services broadcast for general reception (whether or not its use for that purpose is dependent on the use of anything else in conjunction with it) and any software or assembly comprising such apparatus and other apparatus”.

So the door was left open for the licensing of devices which are not televisions in the traditional sense. Section 142 of the Act contains the requirement for TV licences but provides that the Minister for Communications can exempt certain devices from the obligation to have a TV licence.

The Minister did so over the summer months by way of the Television Licence (Exemption of Classes of Television Set) Order 2009. The Order exempts:

portable devices with a display size of not more than 160 cm² capable of exhibiting television services (this covers mobile phones, PDAs, etc.); and
other devices which can access television or television-like services but only where they are available publicly on the internet (and not, for example, by means of analogue or digital broadcast, IPTV, etc).

So, it appears that a PC/laptop with a display in excess of 160² and with a television tuner card requires a TV licence. The maximum penalty for not having a TV licence if one is required is €1,000 [corrected] for the first offence.