Online abuse (and now, more frequently, mobile phone based abuse) is a terrible thing. It ranges from the poison pen on steroids to far more serious, malicious, pernicious behaviour. Public figures are subject to wholesale abuse, ridicule, discrimination, misogyny and threats on social media. Private individuals are subjected to emotional abuse and severe pressures. Something should be done.
Well, a number of people have proposed something that could be done. Two members of the Labour parliamentary party have proposed separate private members bills (draft laws introduced for debate by individual parliamentarians and not by the Government itself). Pat Rabbitte’s bill targets offensive and menacing messages. Lorraine Higgins’ bill would target a wider range of abuse, including incitement to commit suicide and “revenge porn“.
Senator Higgins has, in particular, been subjected to persistent abuse which no-one should have to endure. Some of it is likely criminal within the current legal framework but requires prosecution. Some of the abuse would also violate the terms of service of the social media providers involved. A lot of it is indecent, unpleasant and unacceptable, but it would be quite a jump to criminalise it. Senator Higgins has tonight said in the Seanad that her proposed law is intended to restore online decency. Unfortunately one has to wonder if such a thing ever existed, but there is a much bigger debate to be had about whether unpleasant commentary should be criminalised.
.@LorHiggins: it’s time to restore online decency.
The core provisions of Senator Higgins’ bill are a mixed bag. As Fergal Crehan points out it is quite specific in its aims and includes some good ideas.
To her credit, Senator Higgins’ bill is far more focused than anything I’ve seen proposed before, dealing in a specific way with areas which are not already covered by existing law. Though there are elements of it which I consider absolutely unacceptable, in other areas it raises issues that do need to be addressed by the legislature.
There is little doubt, though, that such a law would represent a serious chilling risk and in particular section 4 (harmful electronic communications) would appear to be a potent weapon in the hands of a public or wealthy figure who wishes to shut down certain types of comment.
It is remarkable, however, that section 5 has made it into the Bill at all. It creates another criminal offence, of not complying with a court direction. That is not controversial. What is quite amazing, however, is the type of court direction concerned. Section 5 says:
If on the evidence the court is not satisfied that the person should be convicted of an offence under section 3 or 4, the court may nevertheless make any of the following upon application to it in that behalf if, having regard to the evidence, the court is satisfied that it is in the interest of justice so to order:
(a) that the person remove or delete specific electronic communication(s);
(b) that the person shares an apology or correction as the court deems appropriate in the circumstances;
(c) that the person shall not, for such period as the court may specify, communicate by any means with the other person or that the person shall not approach within such distance as the court shall specify of the place of residence or employment of the other person.
In other words: a person who is accused of an offence and is found not guilty could nevertheless find themselves being ordered to publicly apologise for the thing that they were found not guilty of and to take other steps.
Courts order people to do things all the time: after they are found guilty of a crime or where an injunction is sought. The above provision is effectively a form of injunction. It would be applied in the District Court, which doesn’t have the jurisdiction to grant civil injunctions. It would be applied by a court that has found the person in front of them not guilty.
Section 5 would make a lot of sense if it applied following conviction. Given the structural nature of the internet there is usually little point in ordering the internet service provider or social media operator to do anything, as the order will usually be unenforceable, so it is quite a good idea to order the person responsible to delete the post rather than the service provider (although there would be issues with archives and caches).
the current wording empowers the court to make orders where the accused is found not guilty of a relevant offence but says nothing about the orders that can be made where an accused is found guilty; and
a law which orders an innocent person to apologise for something or to do anything related to the crime of which they were accused would not survive a challenge.
This bill is unlikely to be passed but will have an impact on the debate any future proposals. Section 5 needs to be seriously reformulated if it is to be considered further.
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.
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.
The unfolding superinjunctions scandal in the United Kingdom is one of those legal stories that has gripped the media, broadsheet and tabloid alike. Much of the coverage now focuses on the fact that social media tends to make a superinjunction redundant.
An injunction is an equitable remedy and therefore a number of specific rules (maxims) apply when a judge considers whether to grant one. One such maxim is that equity will not act in vain. Mr. Justice Clarke summarised the position in a recent Irish case involving an attempt to force through the sale of a property where the purchasers had no ability to pay.
It has often been said that equity will not act in vain. A court should, therefore, be reluctant to make an equitable order where there is no reasonable prospect of the order concerned being complied with. I should add one qualification to that statement. There obviously may be cases where persons may simply decline to obey an order of the court. The fact that a party might be most unlikely to obey a court order could not, in my view, be a reason for the court not making the order in the first place. However, where it is clear on the evidence that a party would not, in fact, be able to comply with a court order, then a court should be most reluctant to make such an order.
For superinjunctions of the type currently in the news, there is no reasonable prospect of the orders being complied with. But this results from the fact that Twitter users, for example, are unlikely to obey the order, rather than being unable to obey it. Nevertheless, the issue of enforceability is significant. Proposals to impose editorial moderation on social media are somewhat silly and, as with many of the measures adopted to tackle illegal filesharing, doomed to fail.
As the Guardian commented in its editorial yesterday:
The case is, on the face of it, not a terribly attractive one for arguing either the cause of freedom of speech or for the supremacy of parliament.
However, the issue is not about the peccadilloes of a premiership footballer and the same principles will apply in far more serious circumstances.
What if some people on Twitter decided to name rape victims, or publish the current identity and whereabouts of Mary Bell, the child killer was who has, since 2003, been protected by a court order?
On the other hand, the existence of superinjunctions first came to public attention during the remarkable Trafigura affair in 2009 when the Guardian was prohibited from reporting on a question asked in the British Parliament. The case was something of a nightmare scenario for those with an interest in open democracy and press freedom.
The UK controversies inevitably involve debate on the merits of introducing a privacy law or reforming defamation law. What about this jurisdiction? Reforms have recently been made to our defamation law and while they were to be accompanied by a “deeply flawed” privacy law, that initiative has stalled.
The Privacy Bill 2006 proposed that a court could, in a privacy action, make an order prohibiting a defendant from doing anything that the court considers violate the privacy of the plaintiff. It also allowed for wide powers to control media reporting of privacy actions. It certainly appeared wide enough to allow for superinjunctions. Eoin O’Dell outlined the conundrum that the Bill would present the media with when coupled with the Defamation Act 2009.
[The Bill] has raised the spectre the defamation gagging writ of old simply being replaced by a shiny new privacy gagging writ. One aspect of the two Bills together puts journalists into a potentially invidious situation. To be able to rely on the defence of reasonable publication in a defamation action, one of the factors which the court will take into account is the extent to which a reasonable attempt was made by the journalist to obtain and publish a response from the person who is the subject of the article.
However, a journalist who makes such contacts in advance, now runs the risk of precipitating a privacy action from that person.
The journalist is now potentially damned by the Privacy Bill for contacting the subject of the article, and damned by the Defamation Bill for not doing so.
Of course, we don’t know if there are any superinjunctions in force in Ireland because, by their nature, the media is generally prohibited from reporting even their existence. Given that Ireland is such a small community, however, it seems probable that word of superinjunctions would quickly leak out. In addition, as noted by Flor McCarthy:
The constitutional requirement in this jurisdiction that justice must be administered in public would be a high hurdle for an applicant to overcome; though maybe we just don’t have the right celebrities!
Nevertheless, it is not inconceivable that such draconian injunctions could be issued in Ireland. After all, the ongoing banking crisis in Ireland has been accompanied by an astounding level of secrecy. The Credit Institutions (Stablisiation) Act 2010, a remarkable piece of legislation which should be far more controversial than it currently is, baldly provides:
The Court may order that any application under this Act, or any part of such an application, shall be heard otherwise than in public or may impose restrictions with regard to the disclosure in open court, publication or reporting of any material that might be commercially sensitive.
This is a very broad provision and was relied on almost immediately after the Act was passed. It was quite clear at the time this Act was first used that the parties hoped that the media would not be aware of the proceedings. Could a judge order that an article such as that in the Irish Times not be published on the grounds that the fact of the application itself was commercially sensitive?
There may well be grounds for the use of draconian court orders on occasion but it must be considered that the parties most likely to seek them are large corporations and wealthy individuals. As Mark Stephens, a high profile media lawyer, commented:
They are almost discriminatory justice. Not a single woman has taken out a super injunction and as a result of that, it is only the men. Invariably they are rich men because it costs between £50,000 and £100,000 (€56,000 and €113,000) to get a superinjunction.
With so much of the electoral attention focussed on crisis management, it is easy to ignore other aspects of each party’s manifestos (or the absence of same in the case of many independents).
It is worth checking these manifestos for references to any issues you have a particular interest in: you might be surprised at what you find. Luckily, blogs like Maman Poulet and Human Rights in Ireland are keeping an eye on the aspects of the party manifestos not concerned solely with bond-burning.
Election night results, pre-Twitter
Our courts and citizens are having to deal with an increasing number of issues under our privacy, data protection and intellectual property laws, so I had a look at the parties’ positions in these areas. If I have missed anything, please let me know in the comments, along with suggestions as to what the manifestos should contain.
FG would “review and update Intellectual Property legislation currently in place to benefit innovation.” This commitment is vague and suggests that the party is aware of issues but hasn’t thought about any solutions yet.
FG would “clarify the laws relating to on-line copyright infringement and the enforcement of rights relating to digital communications”. This probably refers to the consequences of the IRMA litigation (contrast with the Green Party manifesto, below). Again, the party does not appear to be ready to offer solutions.
What is meant by “the enforcement of rights relating to digital communications”? Does it refer to data retention or freedom of speech? The sentence is somewhat worrying in the absence of elaboration.
FG will revamp the Patents Office website. This is a bizarrely specific proposal, by contrast with the other high-level proposals.
The consultancy industry will be delighted to learn of plans for “an E-day on January 1st, 2016 by which all government services to business will be on-line only.”
FG would “develop Ireland as a ‘Digital Island’ and first-mover when it comes to information technology.” One might be forgiven for thinking that is an aspiration that is somewhat unrealistic in 2011.
FG would introduce a national DNA database. The process of doing so had already been started by the outgoing administration.
The party proposes a Circuit Commercial Court along the lines of the existing Commercial Court but which deals with smaller-value commercial disputes (the Circuit Court can generally hear cases for claims worth up to €38,092.14)
Labour’s Innovation Strategy Agency would, among other things, “make Ireland a world leader in the management of [IP]”.
Labour “supports the development of an International Content Services Centre in Ireland, and its potential to make Ireland a European hub for the dissemination of Intellectual Property.” This was, in fact, a commitment of the renewed Programme for Government agreed by Fianna Fáil and the Green Party in October 2009. It is also firmly in Your Country, Your Call territory: one of the winning YCYC proposals was to establish an ICSC. The competition winners were announced in September 2010, almost one year after the establishment of an ICSC became Government policy.
Labour propose to introduce civil orders against serious offenders following conviction, for example, restrictions on the use of the internet by those convicted of child sex offences.
Labour wants to make Ireland a headquarters location for data centres and cloud computing. The party would establish an expert group to review security and privacy issues arising from these areas. A data protection review group established by the Minister for Justice 2008 published a report in 2010. The EU is also currently reviewing the Data Protection Directive (Irish law implements the Directive) and cloud computing is one issue under review in that context.
I will not be the first to suggest that the FF manifesto consists primarily of a defence of the outgoing Government’s policies and lists of achievements since 1997. It is not surprising, therefore, that party does not appear to offer much in the areas of privacy, IP and the internet.
No direct reference is made to copyright, data protection, privacy or the internet (not one instance of the word internet in the whole manifesto, though commitments are made about broadband). One, incidental, reference is made to IP in the context of publicly-funded research. While FG want to clarify the law on exploiting IP developed by third level institutions, FF want the outcomes of publicly-funded research to be made freely available “save where there are specific commercial intellectual-property issues.”
FF commits to supporting research and development and to continue use of the innovation voucher system to help small businesses acquire R&D.
Like the Labour party, the FF manifesto commits to fostering cloud computing services. It also commits to establishing the International Content Services Centre (as already mentioned, this has been Government policy since 2009).
The Greens would “[p]revent private organisations from intruding into a citizen’s privacy”. The Data Protection Acts 1988 and 2003 already do this in general terms, but I assume that the Greens are proposing either reform of those Acts or the implementation of some form of specific privacy law, as was proposed but not implemented by the outgoing administration.
The Greens would prevent organisations from “summarily punishing citizens for alleged illegal activities and from interfering with citizens’ legitimate and legal uses of content.” Again, a little interpretation is required, but I assume this suggests that the Greens would deal with the consequences of the IRMA litigation in a manner which favours citizens over companies. As Minister for Communications, Eamon Ryan said that he was seeking the advice of the Attorney General in this area but his holding statement to the Dáil last year did not indicate any thinking along the lines of what is now contained in the manifesto.
The party would “[u]pdate the role of the Data Commissioner to ensure evolving technologies are in check with the rights of Irish citizens.” This might refer to increased enforcement powers, which would be welcome.
The party would completely oppose the introduction of software patents.
The SF manifesto makes no direct reference to copyright, intellectual property, data protection, privacy or the internet. However, the party would “focus on creating new jobs across the agri-food, tourism and IT/pharma sectors, and Research and Development as well as with initiatives that will ensure Ireland becomes a world leader in green energy.”
Adrian Weckler has published a copy of the intended notification to be issued by eircom to its customers when accused of unlawful filesharing by the Irish recording industry (represented by IRMA). It is, as warning letters go, extremely polite.
I mentioned last month that this “three strikes” system agreed between IRMA and eircom was approved by the High Court (for data protection purposes) on the basis that IRMA would not know “that the infringer is a particular person living in a particular place in Ireland”. In fact, Charleton J. said that all IRMA will “know is that a particular IP address has been involved in the downloading.” However, it appears that DtecNet, who will collect IP addresses for IRMA, has the capability to collect more information than just IP addresses. Whether such capabilites are to be used as part of the IRMA/eircom system is not known.
My suspicions were raised by eircom’s statement on their website that IRMA will send notifications to eircom “containing among other things the IP addresses of individuals”. Such suspicions could be unfounded; for example, IRMA might be sending eircom a list of shared files along with the IP addresses and that information might not be personal data.
However, the template letter reproduced by Adrian says:
Some of the details of the notification supplied by IRMA are set out below …
Is it not strange that eircom repeatedly notes that IRMA will be supplying them with more details than are apparently necessary for the purposes of the three strikes system.
The graduated response system to tackle unlawful filesharing online, agreed as part of an out-of-court settlement between the Irish recording industry and eircom, was approved by the Irish High Court last month. Mr. Justice Charleton’s judgment concluded that the “parties can … lawfully proceed to implement the settlement”, though his judgment relates only to the specific question of compatibility with the Data Protection Acts 1988 and 2003.
Strike 1 to the record industry
eircom has now implemented the graduated response system on a pilot basis and details are available on its website. The FAQs say that IRMA will supply eircom with IP addresses which eircom will match to its customers, who will then receive warnings about alleged unlawful downloading. If warnings are ignored, service may be suspended for 7 days and the customer will not be charged for those 7 days of lost service. On a subsequent alleged infringement, service will be withdrawn for 12 months. If a customer disputes an allegation that their service has been used for unlawful downloading, they can appeal to the eircom, who “will consider all customer appeals on a case by case basis.”
The concerns about graduated response primarily arise out of disconnection on the basis of complaint, rather than court order, and that the sanction affects an entire household, rather than the individual alleged infringer. The latter point has gathered steam as the internet has taken on utility status. IRMA’s attitude to this is clear:
The European Parliament has been talking about internet access as a basic human right. It absolutely is not.
Dick Doyle, IRMA Director General
eircom emphasises that customer data will not be shared by eircom with any other party.
Under no circumstances will eircom be handing over customer details to any third party.
It is also stated that eircom won’t monitor network usage and that “[t]here are strict privacy laws that prohibit eircom from monitoring the online activities of individual customers.” Monitoring will be done by DtecNet on behalf of IRMA.
IRMA will send eircom notifications containing among other things the IP addresses of individuals they have detected as engaging in illegal file sharing in breach of copyright.
One wonders what those “other things” might be. Charleton J. said:
Neither DtecNet, or any similar service of detection, nor any of the plaintiffs whose copyright material is being infringed would ever know through this process that the infringer is a particular person living in a particular place in Ireland. What they do know is that a particular IP address has been involved in the downloading.
DtecNet’s solutions will automatically secure evidence against the infringer(s) and generate Cease & Desist letters that can be sent to the infringer(s) asking for immediate removal of the content.
This is a capability of their systems, not a detail of the IRMA/eircom agreement. But nevertheless, it appears that IRMA may be capable of gathering more than just IP addresses of alleged infringers. eircom might not share customer data with any other party, but it is not clear what data will be shared with it.
Today is National Famine Commemoration Day, which marks the Great Famine in Ireland. It is more a day of sombre reflection than celebration, but forms the hook on which I hang this: my first time hosting Blawg Review.
The ever-dedicated Blawg Review editor marked the day with a visit to Toronto's Ireland Park
The Great Famine looms large in Irish history. It remains an issue, evidenced by the report in today’s Irish Times that there were “raised eyebrows at the absence of any representative from the British embassy” at a commemoration ceremony. Recently, controversy also erupted over plans to hold an auction of Famine artefacts. The collection to be auctioned appears to have survived thanks to the document retention policies of Irish lawyers.
The collection was held by Stewart and Kincaid, a Dublin law firm that acted on behalf of landlords in the 1840s. Thousands of letters were sent to the law firm by rent collectors and sub-landlords explaining why their tenants had not paid, and by clergymen asking for compassion to be shown to starving parishioners. The documents were stored at another Dublin law firm until a decade ago when it is said they decided to throw them out as they were not relevant to the business.
The auction takes place tomorrow and while there are demands that the Irish government purchase the collection, the State’s current financial position suggests the papers might be more likely to cross the Atlantic.
Silver screen law
While Hollywood has occasionally concerned itself with the bellicose aspects of Irish history, there has been little dramatisation of the Great Famine. There is, however, Death or Canada, a docudrama which aims to tell “the compelling tale of how in 1847, the British Colony of Canada gave refuge to tens of thousands of Irish famine victims, who in turn were responsible for the building of North America as we know it today.” I missed it when it was broadcast on RTÉ but, having viewed the website, the IP lawyer in me can’t help but wonder if the logo used constitutes a State emblem and, if so, whether government consent was sought for its use.
On the topic of intellectual property and the movies, it seems that Iron Man 2 is “the most expensive movie ever made about an intellectual property dispute.” Maxwell Kennerly argues that the armoured suit at issue is not patented, but rather the subject of a trade secret. Unfortunately, I can’t read either post as I have yet to see the film and don’t want to prejudge the dispute.
Constitutional moments
Here in Ireland, there currently appears great interest (at least in media circles) in new constitutions and Second Republics. The debated deficiencies in the Irish constitution make an interesting contrast with that of the UK, which is thought to have worked well in producing a government from the “hung parliament” that the British electorate returned.
Fiona de Londrasargues that calls for a new Irish constitution are misguided and that, really, what we need is greater awareness of the 1937 Constitution, along with amendments to it.
Instead of ushering in a ‘new republic’ or ‘renewed republic’ by means of a new Constitution, we ought, I [say], to try to re-imagine our relationship with the State and to become more deeply engaged with the Constitution that we have.
undercurrents of 1930s fascism, or at any rate the Mediterranean version of it as found in Salazar’s Portugal with state-sponsored corporatism; the particular ethos of the Roman Catholic church at the time (which was anything but progressive or liberal); the kind of rural idyll for what de Valera called a ‘frugal society’; and a view of women that saw them as homemakers subservient to the male population.
The UK doesn’t have a written constitution, but constitutional and rights-related issues are equally topical in that jurisdiction since the Conservative/Liberal Democrat government announced its coalition agreement. Charon QC says that the British “system of law and justice is creaking, underfunded, under developed and is not really meeting the needs of all in society”, but that the new coalition government has not got off to a bad start, with their programme for government including many law reform elements, such as a “freedom bill”. Henry Porter is more forthright:
One of the great pleasures of last week was hearing Jack Straw speaking on the Today programme in that patient, reasonable way of the true autocrat, and suddenly realising that I never have to pay attention to him again. Nor for a very long time will I have to listen to Mandelson, Campbell, Clarke, Smith, Reid, Falconer, Blunkett, Woolas or Blears: they’re history and the New Labour project to extend state control into so many areas of our lives is incontestably over.
The coalition results from what they refer to as a “hung parliament” in the UK. This is the default arrangement in Irish politics, where coalitions are an established and often unfortunate part of governance. Now that the UK is flirting with European-style coalition government, it might alsoconsider the introduction of a written constitution.
Of course, written constitutions do not necessarily result in fewer troubles: the unresolved issues of blasphemy and abortion in the Irish Constitution receive attention from Eoin O’Dell and Brook Elliott-Buettner, respectively.
Quis custodiet?
The Guardian has launched a new legal section including an already-excellent selection of blog posts from its Guardian Legal Network. It has devoted a good deal of attention to a big US story combining law and politics: President Obama’s nominee for a vacant Supreme Court seat. It is unfortunate that the sexuality of the nominee is an issue but, more so, it is quite bizarre that a photograph of the young Elena Kagan appears to have sparked such speculation.
The face that launched a thousand blawg posts
The incident, which has shades of The Contender, highlights to Irish eyes the level of scrutiny, professional and political, which surrounds judicial appointments in the US. The highly politicised appointment process may be alien to Irish lawyers, but there is something impressive about the fanatical examination of a nominee’s record on particular legal issues.
Our judicial appointments system is superficially independent but remains political and although the process is far less politicised than in the US, it is still “shrouded in mystery“. Edward McGarr discusses one of the long-running issues in the Irish judiciary: the lack of independent oversight. It seems a judicial council might finally be on the way, but:
What complaints will it receive? Possibly not all it should.
Though I don’t hold such lofty aspirations as a seat on the Irish Supreme Court, I am glad to know that, should the opportunity ever present itself, my humble undergraduate results are unlikely to be pored over by the blawggers at the Wall Street Journal, of whom Jess Bravin informs us that Kagan got her worst grade, a B- in torts.
She did marginally better in Criminal Law, with a B, and managed a B+ in Administrative Law. For the rest, it was all A or A-, except for passing ungraded courses in Accounting and Copyright.
A tenuous Irish theme got me the job of hosting this Blawg Review, so, given my Limerick location, I can hardly miss the opportunity to throw in another such theme by reproducing Madeleine Begun Kane‘s Kagan limerick.
Obama’s What???
“Obama’s Katrina,” they say.
“Obama’s H. Miers,” they pray.
To the wingnuts give thanks
For reminding the ranks
Of the many ways Bush went astray.
The future is … ?
The rather terrifying way in which we may be sleepwalking into a potential dystopian future was highlighted by two issues covered in blawgs this week: Facebook’s privacy practices and the rise of “personal genomics”.
the Net is an astonishing achievement with the potential, only partly but tantalizingly realized to date, to become a true milestone in the history of human communication and a possibly unstoppable force for the spread of liberty and freedom around the globe.
He says that the internet is “under siege” and that work must be done to keep it open. He differs, however, with Kouchner as to what the threats to the internet are. It is clear that, like Google, Facebook now intends to become “the internet” for many of its users and as ever, the threat may come from governments and large corporations rather than extremist groups.
The manner in which it changes privacy policies and settings has come under fire and the EU’s Article 29 Working Group (Brussels-speak for the European group of privacy regulators) says that these changes are unacceptable. However, Benn Parrargues that protecting privacy is up to users, not Facebook; though he does agree that the changes should have been better communicated. He is surprised that the media has “pile[d] up” on Facebook over the privacy issue, but surely such pressure merely reflects the fact that the site has gained such critical mass that, like Google, it has become the establishment and must expect such critiques.
(By the way, like everything these days, the Irish National Famine Memorial Day has a Facebook page.)
Google’s CEO, Eric Schmidt, famously said:
If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place.
Which sounds suspiciously like the “innocent have nothing to fear” defence, excellently filleted by Eoin O’Dell.
Businesses scared of the internet might be tempted to shut down access to social media sites like Facebook, but David Donoghue gives some advice to them about adopting a realistic social media policy. This may be of interest to Irish journalists, who recently underwent a period of public introspection when the unconfirmed death of one of the country’s most popular radio presenters became the subject of twitgossip (twossip?). The controversy resulted in plans to introduce a social media policy in the country’s largest broadcaster.
While the online sphere is increasingly regulated by private enterprise, it is refreshing to see this creative workers’ rights protest, staged in the lobby of a hotel, proceed without being shut down or silenced by the hotel’s management (though one expects they were taken by surprise by this all-singing-all-dancing troupe of protestors) (from Waging Nonviolence).
21st Century privacy concerns won’t be online-only: Dan Vorhaus outlines recent developments in direct-to-consumer genetic testing and asks whether regulation is on the way. He says that the debate has long existed as to whether “individuals are capable of handling their own genetic information” and concludes:
Tests once predominantly available only to early adopters capable of seeking them out online will now begin to appear on the shelves of thousands of neighborhood drugstores nationwide. To a greater degree than ever before, genetic testing will soon be available to mainstream America (and subject to the impulse buy). And that, for better or for worse, may be all that it takes to convince some regulators that the time for action is finally at hand.
As with Facebook, there is a gap between theory and reality, between policy and consumer action. These products, whether they be Facebook’s instant personalisation service or chemist shop genetic tests, are flooding the market. Thought as to how they should be regulated struggles to keep up. Meanwhile, Ted Hennessydiscusses the scarily-titled Genetic Information Non-Discrimination Act 2008 in the context of employment law. On this side of the pond, we similarly regulate the use of genetic data, but have tucked such regulation away in less exciting secondary legislation.
Of course, genetic discrimination is merely a veiled, sophisticated form of old-fashioned discrimination, in relation to which Bill Egnormakes some very good points as he notes the difference between immigrants of colour in the US and Irish illegals, who might pass below the radar.
It is the obvious problem with uneven enforcement that makes this law so pernicious. Who does an immigrant look like?
Such double standards are not unknown in Ireland, where Eastern European and non-European immigrants are called “non nationals”, but English, French, American and German residents are referred to by their nationality. And here, of course, Irish immigrants in the US are known as “undocumented“.
Still undocumented?
Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.
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?
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.
Online abuse (and now, more frequently, mobile phone based abuse) is a terrible thing. It ranges from the poison pen on steroids to far more serious, malicious, pernicious behaviour. Public figures are subject to wholesale abuse, ridicule, discrimination, misogyny and threats on social media. Private individuals are subjected to emotional abuse and severe pressures. Something should be done.
A Clatter of the Law 