Month: October 2009

Biometric national ID cards for Ireland on the way?

The Oireachtas Joint Committee on Social & Family Affairs recently published its first report on social welfare fraud, no doubt a pressing issue in light of the State’s financial predicament and the increasing numbers requiring social welfare.

There appears to have been little comment in relation to the this suprising recommendation of the Joint Committee – a recommendation which would likely be highly controversial in jurisdictions similar to our own.

It is the view of the Committee that the development of an integrated services card is long overdue and that its development should be fast tracked as a priority measure to combat fraud and to improve service efficiency. To this end, the Committee believes that biometric information should be incorporated into the public services card in order to eliminate the possibility of fraud and to facilitate this card becoming a national identity card. The Committee supports the introduction of a national identity card and believes that it is fundamental that the public services card which is currently in development be designed in such a way that it will later be able to incorporate data from other government departments and agencies.

Not only a national ID card, but a biometric one at that. Indeed, the Department of Social Welfare and Family Affairs has, the Joint Committee reports, already “developed the specifications for a Public Service Card (PSC). The specification includes a photograph and signature as identification mechanisms. The PSC is designed to interact with public services in general and to authenticate individuals.”

In reality, of course, the PSC would merely be the physical manifestation of what has already become a de facto national ID system: the PPS number – an epitome of function creep if ever there were. It is clear from the Social Welfare Acts and the PPSN code of practice that a PPS number can be requested or used only by specified public bodies or persons authorised by those bodies to act on their behalf. Indeed, it is an offence to request or hold a PPS number without the requisite legal authority.

Section 2(1) of the Data Protection Acts 1988 and 2003 further requires that personal data is fairly obtained and processed and it is clear from guidance published by the Data Protection Commissioner that data controllers must, pursuant to this provision, make individuals fully aware at the time of providing personal information to what use the information will be put. Section 2(1)(c)(iii) of the Data Protection Acts requires that data must not be excessive in relation to the purpose for which they are collected or further processed.

Anecdotal evidence would suggest that these legal provisions and the code of practice applicable to the PPS number system are not observed and there is a very low level of awareness as to the restrictions on the use of PPS numbers and the existence of the offence of requesting a PPS number without proper authority.

A particularly egregious example is the website of the Public Appointments Service (www.publicjobs.ie), which requires citizens who wish to register for that website to supply their PPS number when completing the registration form. It is inconceivable that the Public Appointments Service requires a PPS number to complete this transaction.

The report shows no evidence of having considered the human rights or data protection implications of introducing such a system of national ID cards, not to mention the desirability of such a system and the possibility of further function creep. Such arguments have been rehearsed in detail in the UK, for example, where there exists a visceral objection to such a system of identification.

Rather, the Joint Committee report envisages a land of joined-up thinking and efficient Big Brother bureaucracy, with “[a]n integrated system using biometric data in passports, residency cards and visa applications [which] would virtually eliminate the possibility of producing fraudulent documents in benefit applications.”

Increasingly, legislation such as the Data Protection Acts is seen as a block to the introduction of certain measures (this attitude is suggested in the plenary hearings of the Joint Committee). The realpolitik of the matter suggests that it is cost issues that might prohibit or delay the introduction of national ID in Ireland, rather than any other concern.

Why abolish the Seanad?

Enda Kenny has caused quite a stir with his announcement that Fine Gael would, in government, hold a referendum within one year of entering office to abolish the Seanad, the upper house of Ireland’s national parliament.

The motivation for this announcement would appear to be a desire to recapture some media momentum from the Labour party, but it makes for an odd policy issue to focus on in an important speech. There are many areas of the Constitution which various lobby groups have pointed to as needing reform (such as childrens’ rights, abortion, women, religion, blasphemy, the requirement to hold referenda for European Union treaties), but each is far more complex and controversial. It would be more useful to see Fine Gael propose a more comprehensive approach to constitutional reform which might include a series of referenda or a ‘super-referendum’. Holding a single-issue referendum on the Seanad seems wasteful in itself, given that the stated aim of the measure is to save money.

Considering the position of the Seanad in the Constitution and the wide scope for reform without constitutional amendment, it is strange that Fine Gael have taken this approach. Unfortunately, the makeup of panels and the university elector system cannot be changed, but much else can.

One quick and easy reform would be to abolish the salary paid to senators and cap expenses at around €20,000. A large swathe of the Seanad is populated by politicians who failed to get elected to the Dáil or who are building a profile for an eventual Dáil run. Most of the rest occupy it as a part-time role. If the position carried no salary the Seanad would still be filled, without difficulty. There is also an honorific element to a Seanad seat which negates the need for a salary.

Immediate cost-savings could be realised and a longer programme of Oireachtas reform could then be developed – perhaps involving the Seanad in European affairs to a greater degree. Too often sectors of Irish society object to European Union legislation at the point of implementation, rather than at the point of debate. The Lisbon Treaty provides for a greater role for national parliaments in the development of EU law and the Seanad could fulfil a useful role in Ireland’s engagement with the EU.

Finally, while much is made of the political nature of many appointments to the Seanad, we should not turn our noses up at the potential to directly appoint parliamentarians. These can represent sections of society who are too geographically or politically scattered to elect one of their own to the Dáil, or individuals who voice opinions that should be heard but would never gain a Dáil seat. The Seanad also provides the opportunity to a Government to bring external expertise to the cabinet table, as happens one a more wide scale basis in some countries (the US being the most prominent example). Up to two government ministers can be drawn from the Seanad (though a senator cannot be taoiseach, tánasite or minister for finance) and with two Seanad seats currently unfilled, this theoretically allows for the government to nominate, for example, a businessperson, economist or academic to the Seanad and then bring them into the government.

These possibilities could, of course, be incorporated into a unicameral Oireachtas, but for now Fine Gael seem content to propose the abolition of the Seanad and the reduction in the number of TDs without proposing a more nuanced vision of how the Oireachtas should function.

In defence of Carter-Ruck?

The ‘gagging’ order issued by the English High Court against the Guardian yesterday kicked off a remarkable and fast-moving story in which the media and the law were on an apparent collision course, and in which the twitteratti has laid claim to a significant influence.

On first impressions, the injunction seemed wholly undemocratic and quite bizarre, given that the subject-matter it prohibited the Guardian from publishing was public information. However, the level of opprobrium heaped on Carter-Ruck Solicitors is equally remarkable. They might not, perhaps, be deserving of sympathy, but do they deserve the criticism and vitriol, or the protest which will apparently take place outside their offices on Thursday?

By some accounts, the founder of Carter-Ruck Solicitors was primarily motivated by self-interest in pursuing expensive libel claims. But don’t lawyers act on behalf of their clients? Rational firms do not wage wars of aggression on their own behalf (after all, they will want to be paid for their work). If a lawyer is a gun, someone must pull the trigger. Today, the Guardian says:

Carter-Ruck, the law firm representing Trafigura, was accused of infringing the supremacy of parliament after it insisted that an injunction obtained against the Guardian prevented the paper from reporting a question tabled on Monday by the Labour MP Paul Farrelly. [My emphasis.]

Surely, if any such accusation is to be made, it should lie at the door of Carter-Ruck’s clients?

More importantly, lawyers don’t own the shooting gallery. The British government is free to line up the libel ducks up in a different manner and most would agree that reform of UK libel law is long overdue (even Ireland has gotten around to updating its defamation law, though we await the Privacy Act that was to be its companion).

Today, Carter-Ruck Solicitors released a statement on behalf of Trafigura which complicates the episode somewhat and it may be that the legal technicalities behind this story are not simple enough to fit in a soundbite (or tweet, for that matter). Carter-Ruck has been accused of chilling freedom of speech. Should that criticism not be leveled at the firm’s clients rather than the firm itself?

At what point do we hold lawyers to blame for the actions of their clients?

House tax due at end of month [updated]

There appears to be a good deal of confusion and lack of awareness of the terms of the annual non principal private residence (NPPR) charge, introduced in the Local Government (Charges) Act 2009 and colloquially [but erroneously] known as the second house tax. If you’re liable to the tax, you should ensure payment by 31 October 2009 or you will incur €20/month in late payment fees and could delay a sale of the property.

Anyone in doubt as to whether they are subject to the charge should check the official set of frequently asked questions, available here. If that doesn’t help or you need further confirmation, contact your local county council and ask them directly.

While the tax this year is only €200, the consequences of non-payment could be relatively serious, ranging from the monthly late payment fee to the possibility of a prosecution. Many people are not yet aware that any unpaid charge and late payment fees accrued will also be a legal charge against the property, which could cause unnecessary delays or difficulties in selling the property at a later date.

Two common exemptions from the tax are:

where an individual owns two houses only for a brief period (i.e. when moving home); and
where the second property is a rent-free ”granny flat’ or accommodation for a family member nearby (the tax is not payable in respect of a dwelling occupied by a relative if it is provided rent free and is located no more than 2 kms from the residence of the owner).

If availing of an exemption, you should confirm with your local county council that the exemption is available and they may require you to write to them. County councils will not be investigating each dwelling in the country but could, at a later date, ask for documentary evidence to back up claims to an exemption (e.g. correspondence to the person living in the ‘granny flat’ to demonstrate that (s)he actually lived there).

The online payment system at www.nppr.ie is the simplest way of making the payment, but it can be done in post also.

Note: The “liability date”, on which it is determined whether a property owner is liable to pay the tax is 31 July 2009, with two months to pay, i.e. 30th September 2009). However, a ‘grace period’ of one month has been allowed for this year, giving taxpayers until 31 October 2009 to pay.

UPDATE: I have changed the title of this post to reflect the fact that the tax applies not only to “second houses”, but also to any house which is not a principal private residence. Therefore, you could own just one house and still be subject to the tax if not resident in it. This has been a source of tremendous confusion and controversy in recent weeks. You should check the NPPR website or call your local authority if unsure.

File under: “Not what trade mark protection was made for”

The Sunday Times recently carried a report on the bowdlerization of an ad being run to encourage people to pay for their TV licence.

In the commercial a woman specifically attributed her frozen facial expression to the trademark anti-wrinkle injection [Botox]. Allergan, the American company that manufactures Botox in Westport, Co Mayo, complained about the advertisement to An Post, which collects the licence fee, and to RTE last June.

The broadcaster agreed to pull the commercial and replace it with a version that didn’t refer to Botox by name … Rory Coveney, a spokesman for RTE, said the advert was not pulled because it implied the character could not express emotion. “Allergan put in a request to An Post to change the ad because the term Botox is a trademark and they then wrote to us,” Coveney said. “We are ultimately responsible for putting the ad on air. The mistake was that Botox was used as a colloquial term, but just like Hoover, it’s a trademark.”

The mere fact that Botox is a trade mark doesn’t grant Allergan absolute control over how it is used and the example given by Coveney is interesting, as trade mark protection doesn’t prohibit the colloquial use of the mark. Allergan, Hoover, Google and others rightly monitor the use of their trade marks very carefully but they cannot require the media to remove all reference to their products when it suits them.

Could Allergan mount a complaint under section 14(3) of the Trade Marks Act 1996, that the use of the word Botox in the ad was without due cause and takes unfair advantage of, or is detrimental to, the distinctive character or the reputation of the trade mark? Taking such a complaint to court would necessarily involve an exploration of the effects of Botox on one’s capacity for facial expression and an argument that the ad unfairly suggests that Botox diminishes that capacity for expression.

Or is the real issue to do with adverstising codes?

Janet Kettle, a spokeswoman for Allergan in the UK, said the company was concerned the RTE ad breached advertising rules. “Botox is a prescriptive product and you can’t advertise it directly to consumers,” she said. Allergan has brought cases to defend the name of its product in 75 countries, including Ireland.

There is something of the ridiculous to this justification for demanding alterations to the ad and it is difficult to see how RTÉ could be found in breach of any advertising rules, as suggested. Neither could it seriously be suggested that RTÉ could be in breach of the comparative advertising rules in the Consumer Protection Act 2007 or the Misleading and Comparative Marketing Communications Regulations.

Rather, this appears to be a case of using intellectual property rights to achieve an end which does not concern IP. The episode is reminiscent of recent road safety ads broadcast on RTE in which the logos were removed from cars used in the making of the ads, at the request of the car company (Renault and Ford).

These incidents don’t raise serious freedom of speech concerns of themselves, but do suggest a worrying rush to capitulation by advertisers and broadcasters when it comes to threats received from over-sensitive companies.

Telecoms industry surprisingly defensive on data retention

Karlin Lillington had an excellent piece in the Times on 25 September reporting on a private/confidential/secret (the correct adjective appears to be open to debate) deal between the State and the telecommunications industry in Ireland to supplement the law and proposed laws on data retention.

My contribution on the issue was published in the letters page on Friday (2 October), along with that of the industry. Karlin has a response on her blog:

“The fact is that no one I can find across the spectrum of those concerned about data retention — which include politicians, leading business figures, lawyers, and privacy advocates — knew they were off privately drawing up a memorandum figuring out how they would interpret a law and agreeing various provisions with the very people who can come demand our data from the operators. This job of interpretation, as I argued in my column, is normally the task of the legislature and the courts in democracies, and one might think on such a critical issue, should involve privacy advocates and some public input, something the telecoms industry has regularly called for when it has benefited them to do so (as some of the names on their letter know full well), but seemingly not at this critical juncture. I can only conclude that they only want ‘open’ discussion when they feel their input has been excluded, but that they don’t really want customers and businesses to know that they are now amongst the consultative closed circle.”

Her post includes some good onward links on the issue that are worth checking out. It’s also worth checking out Digital Rights Ireland’s posts.

What surprises me is the defensiveness of the industry. Originally, the industry was not receptive to the idea of data retention at all, as it saddles them with an extra financial and regulatory burden. Now, it would seem, they are cheerleaders for the Irish data retention regime and are first out of the blocks to defend it from criticism.