Tag: european union

Battle of the Bakers: Round 2 (and an interesting update re Round 1)

Exhibit A
Exhibit A: McCambridge bread

I had assumed that the McCambridge v. Brennan brown bread case was solely one of intellectual property infringement but the judgment of Mr Justice Peart, which has now been published, shows that there is more to it (an Irish Times report of the case is here).

Indeed, Peart J notes that McCambridge do not “have any proprietary rights as such over that type of re-sealable bag, its shape or indeed the shape and size of the loaf of bread inside.” The company itself accepted that it does have such proprietary rights, nor rights over the shape and colour or ingredients of the bread itself.

Notwithstanding that, Peart J agreed that the overall impression on consumers satisfied the conditions for passing off (a form of action used to protect unregistered intellectual property rights).

[I]t would take more care and attention that I believe it is reasonable to attribute to the average shopper for him or her not to avoid confusion between the two packages when observed on the shelf, especially when these are placed adjacently or even proximately so.

Peart J indicated that an injunction should be granted to prevent further passing off. However, the interesting element of the case comes next: he also considered whether McCambridge are entitled to an injunction under section 71 of the Consumer Protection Act 2007 on the basis that Brennans were engaging in a misleading commercial practice.

The Minister for Jobs, Enterprise & Innovation recently announced a planned overhaul of consumer legislation, arguably ignoring that the 2007 Act was supposed to be just that (I wrote about it here in April 2011). The 2007 Act was quite significant, but appears to have been barely used, particularly by the National Consumer Agency. Indeed, Peart J states that they held a watching brief in McCambridge v. Brennan but, strangely, adopted “a neutral position”.

(The failure of the Agency to adopt a position is reminiscent of the refusal of the Data Protection Commissioner to involve his office in the EMI v. eircom case. Ironically, he recently went on to order eircom to halt the three-strikes system which resulted from that case.)

Exhibit B
Exhibit B: Wot, no McCambridge?

Peart J decided that McCambridge were not entitled to an injunction under section 71, apparently (my interpretation) on the basis that the design of its packaging was not a commercial practice involving marketing or advertising.

Peart J was to hear the parties in relation to the exact terms of his proposed injunction, but the decision to grant an injunction has since been appealed to the Supreme Court by Brennans.

As stated, my interpretation of Peart J’s comments (at paragraph 45) is that an injunction was not available because packaging was not “marketing or advertising”. I would have thought that the European Communities (Misleading and Comparative Marketing Communications) Regulations 2007 were aimed at preventing misleading advertising and that the (quite similar) provisions of the 2007 Act were of broader application such as would capture packaging. The 2007 Act is the Irish implementation of the Unfair Commercial Practices Directive which, in the UK, was implemented by statutory instrument. Guidance from the UK’s Office of Fair Trading gives the following example of a prohibited practice:

A trader designs the packaging of shampoo A so that it very closely resembles that of shampoo B, an established brand of a competitor. If the similarity was introduced to deliberately mislead consumers into believing that shampoo A is made by the competitor (who makes shampoo B) – this would breach the [Regulations].

Of course, Peart J had decided that Brennans’ passing off was not deliberate, and so could not have found them to have intended to “deliberately mislead consumers”. Nevertheless, it appears to be a case where the views of the Consumer Protection Agency would have been of use.

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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.

Election 2011: Privacy, intellectual property & the internet

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.

Crowd checking the 1931 general election results, Willis Street, Wellington, 1931
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.

Fine Gael

  • 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

  • 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.

Fianna Fáil

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).

Green Party

  • 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.

Sinn Féin

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.”


Irish data retention law now in force

There has been so much political uncertainty in recent weeks that one wonders what business of Government has gone on unnoticed. One such item of business, I discovered from the A&L Goodbody legislative FAQ referred to earlier, was the passing by the Oireachtas of the Communications (Retention of Data) Act 2011.

This controversial piece of legislation is not available,  as yet, in its final form as none of the Department of JusticeHouses of the Oireachtas or Irish Statute Book have published it.

The President signed the Act into law on 26 January 2011 but, as far as I am aware, this has not been reported on anywhere. The commencement date is not known but the latest draft available does not contain a commencement clause so, if one was not inserted before it was passed by the Oireachtas, it is now in effect.

[Update: I wasn’t correct in stating that the introduction of the Act hasn’t been reported on. I had missed Eoin O’Dell’s reference to its passing on his blog and Karlin Lillington‘s coverage in the Irish Times. She also covered the Seanad debates on twitter. However, it is still noteworthy that this news has been confined to analysis pieces and has not been headline news, by contrast with other rushed legislation recently signed by the President.]

According to the Internet Service Providers Association of Ireland:

ISPs providing Internet services to the public are now obliged to retain certain data, as set out in the Act, identifying the occurrence of a communication (but not about the content of the communication itself). This must be done for every user, whether they are a private or business customer. In the case of Internet communications the ISP must keep the data for a period of one year … [The] ISPAI regrets [the passing of the Act] despite the trojan efforts of non-government Senators who argued the amendments (which were defeated) aimed at giving greater clarity to the legislation and particularly to minimise its potential to put Ireland at a cost disadvantage to our EU neighbours for Internet based business.

Digital Rights Ireland summarised the effect of the legislation when it was first put before the Oireacthas as follows:

In essence, the Bill requires telecommunications companies, internet service providers, and the like, to retain data about communications (though not the content of the communications); phone and mobile traffic data have to be retained for 2 years; internet communications have to be retained for one year … This will impose significant costs on those obliged to retain and secure the data, and those costs will be passed on to their already hard-pressed customers. And it is likely to drive international telecommunications and internet companies to European states which have introduced far less demanding regimes.

The Irish Council for Civil Liberties made submissions to the Department of Justice about the legislation. Digital Rights Ireland took a constitutional challenge against the legislation and that challenge is en route to the European Court of Justice (the Act implements the EU data retention directive).

Privacy & Human Rights in Europe

Privacy InternationalPrivacy International have published their latest study reviewing privacy and human rights in Europe.

I contributed to the Irish chapter of the report, along with TJ McIntyre and Colin Irwin. It gives a good overview of current Irish law on privacy and data protection.

The report concludes that, while Europe is the world leader in privacy rights, there remains much work to be done in the field.

The Directive on Data Protection has been implemented across EU member states and beyond, but inconsistencies remain. Surveillance harmonisation that was once threatened is now in disarray. Yet there are so many loopholes and exemptions that it is increasingly challenging to get a full understanding of the privacy situations in European countries. The cloak of ‘national security’ enshrouds many practices, minimises authorisation safeguards and prevents oversight.

The report includes a report card in its key findings, the highlights of which for Ireland include criticisms that Ministerial warrants can override privacy law protections and that powers allowing for interception of VoIP calls are ambiguous.

For more on international privacy law, Morrison Foerster have a very useful library which acts as an online sourcebook.

Conspiracy theorists (and others): who is writing our laws?

Perhaps it’s only fitting, with the IMF and the EU pulling the State’s financial strings, that Irish legislation is taking on a European flavour.

© Rem Koolhaas and/or others

Irish primary legislation usually consists of a short title, a long title, operative sections and schedules. The short title is the name by which legislation is known to and the long title describes it further. For example, the long title to the Finance Act 2010 is:

AN ACT TO PROVIDE FOR THE IMPOSITION, REPEAL, REMISSION, ALTERATION AND REGULATION OF TAXATION, OF STAMP DUTIES AND OF DUTIES RELATING TO EXCISE AND OTHERWISE TO MAKE FURTHER PROVISION IN CONNECTION WITH FINANCE INCLUDING THE REGULATION OF CUSTOMS.

It has 165 operative provisions and four schedules, the latter containing tables of rates and other technical amendments. Background information is contained in the explanatory memorandum which accompanies legislation at draft stage (the 35-page explanatory memo for the Finance Bill 2010 is here).

Murdoch‘s notes:

In Irish legislation, preambles [which include descriptive recitals] are mainly found in Acts to amend the Constitution [eg. the 2009 ratification of the Lisbon Treaty], and Private Acts [eg. the Limerick Markets Act 1992].

Take 2006 as representative: 42 acts passed in a pre-crash year, with no constitutional amendments or private acts. None of those 42 acts contains recitals.

recently observed that legislative mission statements were present in new Irish financial laws. These include operative sections outlining the purpose of the legislation (rather than the actual effect) and recitals, which I said were “common in continental European civil law systems and familiar to Irish lawyers thanks to the regulations and directives of the European Union.” Take, for example, Directive 2010/65 which puts up 28 recitals for the reader to wade through before getting to the good stuff: reporting formalities for ships in EU ports (though article 1(1) again sets out the purpose of the directive).

Yesterday, the Minister for Finance published the Credit Institutions (Stablisation) Bill 2010. This is a substantial piece of legislation containing sweeping powers for the Minister, but on a superficial level, it was striking that the Bill again contains a purpose provision (section 4) and a lengthy set of recitals which shout the background (reproduced below).

One might be inclined to speculate as to the source of this Europeanisation of Irish legislation.

Recitals to the Credit Institutions (Stabilisation) Bill 2010

WHEREAS THERE IS A SERIOUS DISTURBANCE IN THE ECONOMY OF THE STATE;

AND WHEREAS MEASURES ARE NECESSARY TO ADDRESS A UNIQUE AND UNPRECEDENTED ECONOMIC CRISIS WHICH HAS LED TO DIFFICULT ECONOMIC CIRCUMSTANCES AND SEVERE DISRUPTION TO THE ECONOMY;

AND WHEREAS THERE IS A CONTINUING SERIOUS THREAT TO THE STABILITY OF CERTAIN CREDIT INSTITUTIONS IN THE STATE, AND TO THE FINANCIAL SYSTEM GENERALLY;

AND WHEREAS IT IS NECESSARY, IN THE PUBLIC INTEREST, TO MAINTAIN THE STABILITY OF THOSE CREDIT INSTITUTIONS AND THE FINANCIAL SYSTEM IN THE STATE;

AND WHEREAS IT IS NECESSARY, IN THE INTERESTS OF THE COMMON GOOD, TO CONTINUE THE PROCESS OF REORGANISATION, PRESERVATION AND RESTORATION OF THE FINANCIAL POSITION OF ANGLO IRISH BANK CORPORATION LIMITED BEGUN WITH THE ANGLO IRISH BANK CORPORATION ACT 2009;

AND WHEREAS THE FUNCTIONS AND POWERS CONFERRED BY THIS ACT ARE NECESSARY TO SECURE FINANCIAL STABILITY AND TO EFFECT A REORGANISATION OF CERTAIN CREDIT INSTITUTIONS;

AND WHEREAS IT IS NECESSARY TO AMEND THE EUROPEAN COMMUNITIES (REORGANISATION AND WINDING-UP OF CREDIT INSTITUTIONS) REGULATIONS 2004 (S.I. NO. 198 OF 2004) TO IMPLEMENT DIRECTIVE 2001/24/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL OF 4 APRIL 2001 TO PRESERVE OR RESTORE THE FINANCIAL POSITION OF CERTAIN CREDIT INSTITUTIONS;

AND WHEREAS THE CONSIDERABLE FINANCIAL SUPPORT PROVIDED BY THE STATE TO CERTAIN CREDIT INSTITUTIONS HAS HELPED THOSE INSTITUTIONS TO MEET THEIR FINANCIAL AND REGULATORY OBLIGATIONS;

AND WHEREAS THE STATE WISHES TO PROVIDE FOR THE PERFORMANCE OF THE FUNCTIONS CONFERRED BY THIS ACT IN ORDER TO ACHIEVE THE FINANCIAL STABILISATION OF THOSE CREDIT INSTITUTIONS AND THEIR RESTRUCTURING (CONSISTENTLY WITH THE STATE AID RULES OF THE EUROPEAN UNION) IN THE CONTEXT OF THE NATIONAL RECOVERY PLAN 2011–2014 AND THE EUROPEAN UNION/INTERNATIONAL MONETARY FUND PROGRAMME OF FINANCIAL SUPPORT FOR IRELAND;

AND WHEREAS THE COMMON GOOD REQUIRES PERMANENT OR TEMPORARY INTERFERENCE WITH THE RIGHTS, INCLUDING PROPERTY RIGHTS, OF PERSONS WHO MAY BE AFFECTED BY THE PERFORMANCE OF THOSE FUNCTIONS;

AND WHEREAS THE URGENT REORGANISATION OF CERTAIN CREDIT INSTITUTIONS IS OF SYSTEMIC IMPORTANCE TO THE STATE;

AND WHEREAS IT IS NECESSARY TO MAINTAIN PUBLIC CONFIDENCE IN, AND ENHANCE, THE PROTECTION OF DEPOSITS IN CREDIT INSTITUTIONS GENERALLY;

AND WHEREAS IT IS DESIRABLE TO PROMOTE AND FACILITATE INVESTMENT BY PERSONS OTHER THAN THE STATE IN CREDIT INSTITUTIONS TO REDUCE THEIR
RELIANCE UPON STATE SUPPORT;

AND WHEREAS BECAUSE CERTAIN CREDIT INSTITUTIONS IN THE STATE ARE PARTIES TO CONTRACTS AND OTHER ARRANGEMENTS GOVERNED BY THE LAW OF A STATE OTHER THAN THE STATE;

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS: