Tag: media

Is the Law Society trying to regulate blogs?

Restrictive rules on advertising by solicitors contain important exemptions to protect the right of solicitors to comment on legal and other issues. Is the Law Society interpreting the rules in a way would restrict those exemptions and increase their oversight of comment by solicitors?

Advertising by solicitors is very tightly restricted by the law and regulated by the Law Society of Ireland. I have written about some of the restrictions before. Most of the rules regulate the tone of advertising; what might be termed “ambulance chasing” through advertising, for example, is not possible in Ireland. None of the UK-style personal injury ads you might see on daytime television are possible in Ireland. Even this, quite mild and professional, form of ad would most likely result in trouble for an Irish solicitor daring to upload it.

The Irish rules may or may not be a good way to regulate advertising by lawyers. They do, at the very least, clash with the demand that the professions be more competitive. But the rules do recognise a very important exemption: comment. Exemptions are included in the Solicitors Advertising Regulations that should ensure no overreach in their application that would regulate or prohibit genuine comment.

The Regulations only apply to an “advertisement”, defined as being almost any type of communication “which is intended to publicise or otherwise promote a solicitor in relation to the solicitor’s practice” but “excluding a communication which is primarily intended to give information on the law”. So, a communication must be both intended to promote a solicitor and not be primarily intended to give information on the law for the Regulations to apply.

This is quite a large exemption and obviously seeks to make a distinction between traditional advertising and, for example, news updates or comment. If a communication by a solicitor is primarily intended to give information on the law it is not an advertisement, is not governed by the extensive rules and restrictions contained in the Regulations and, importantly, is not subject to oversight by the Law Society. That oversight is significant: a breach of the Regulations is a disciplinary matter which can potentially have serious consequences for the solicitor involved.

One catch-all provision in the Regulations, for example, prohibits an advertisement which is likely to bring the solicitors’ profession into disrepute. It is quite difficult to know precisely what is covered by that prohibition (the Law Society does not publish decisions made under the Regulations) but it is quite easy to envisage an individual or organisation who dislikes a communication from someone who happens to be a solicitor making a complaint to the Society under this heading of the Regulations.

Last Friday the Law Society published a surprising practice note on advertising. The headine refers to legal advice columns, so you might think it applies only to regular pieces in local papers where readers send in questions, for example. It suggests that where the solicitor is paying to have the column appear or is simply reproducing the content, the exemption does not apply and the column might be an advertisement. This is fair enough: such a column should be identified as advertorial or a commercial feature by the publisher. In fact, paying for editorial content to appear in a newspaper without making it clear to readers that it is a paid feature is a criminal offence for all businesses, not just solicitors.

However, the practice note makes a number of significant leaps when interpreting the Regulations. It refers to an exemption “set down in regulation 12” and refers to the contents of regulation 12 as being a test. In fact, the exemption is contained in the definition of “advertisement” in regulation 2(a). Regulation 12(a) adds to or gives examples of the exemption, it does not limit it. Paragraphs (b) and (c) do limit the exemption by clarifying that the distribution of free legal books may, for example, constitute advertising even though the publication might be information on the law.

The danger in this practice note, which one must assume the Law Society will apply in interpreting the Regulations, is that it sets a far more restrictive scope to the comment exemption in the Regulations. The paid advice column is not a difficulty, but many solicitors now publish blogs, for example, and some pay to do so. Many solicitors have websites which may constitute advertising in their entirety or may include information on the law but either way are likely to be paid for by the solicitor.

Where an article does not satisfy this test, that is, if it has been paid for by or on behalf of the solicitor, or where it has enjoyed repeated publication, the article is subject to the regulations in the normal way.

I do not accept this. Rather, the article might be subject to the Regulations. This blog is published using WordPress.com who I pay for mapping a domain name to it. Is it a series of legal articles written by me where part of the space in which it is published is paid for by me? Possibly, depending on your view of domain name mapping to a free blogging platform and whether the former constitutes “space” in which the blog is published. Is it an advertisement? Certainly not. It is not intended to be and it constitutes information on the law.

Regulation 12 is not a “test” of whether or not a communication by a solicitor is commercial or non-commercial. The test is in the definition of “advertisement” itself. The practice note is, perhaps inadvertently, further evidence of how the the Regulations are out of date. These anachronistic advertising rules do not appropriately accommodate or regulate blogging, social media or other contemporary means of communication.

The Regulations are already the subject of infringement proceedings by the European Commission who allege that they breach the Services Directive, which required that Member States ease restrictions on advertising by professionals. Despite this, the Law Society has recently been publishing practice notes which reinforce the existing Regulations and present to solicitors an interpretation of them more restrictive than the Regulations themselves. Complete reform of the the Regulations is long overdue.

Censorship in the 1920s, still on the books?

The Radio 1 History Show recently had an interesting segment on the prosecution of a Waterford newspaper editor.

In the new Irish Free State, low levels of sexual immorality and sexual crime were viewed as two indicators of this nation’s health. The reporting of sexual crime was to remain largely off limits to Irish journalists up to the 1940s and beyond.

A prosecution brought against a newspaper editor in 1929 did much to establish this status quo. The editor in question was D.C. Boyd of the Waterford Standard. He had reported explicit details of a case in which a local business man was accused of raping a 13 year old girl.

You can listen here to Myles Dungan’s interview with Dr Tony Keating, who gave a lecture on the topic in Waterford.

Dungan says that “reporting of sexual crime was to remain largely off limits to Irish journalists up to the 1940s and beyond.” I was curious to learn how far that “beyond” stretched and what became of the offence Boyd was prosecuted with.

Section 14(1) of the Censorship of Publications Act 1929 provides:

It shall not be lawful to print or publish or cause or procure to be printed or published in relation to any judicial proceedings:

(a) any indecent matter the publication of which would be calculated to injure public morals, or

(b) any indecent medical, surgical or physiological details the publication of which would be calculated to injure public morals.

Section 15 says that an offence is punishable by a fine of up to £500 and/or up to six months imprisonment (which could include hard labour). In light of current debates about ISP and website operator liability for online content, it is interesting to note that section 15 specifically provided that the liability for the offence extended to proprietors, editors, publishers and “master printers”.

So, when was it repealed? It wasn’t. Sections 14(1) and 15 remain on the books.

According to Keating, Boyd’s case was the first prosecution of this type and was described by the trial judge as being exactly the type of case the law was introduced to deal with. One can only hope that it remains in force due to oversight rather than principle.

Dr Keating says that the maximum fine of £500 in section 15 would, in today’s money, be £22,000 (I am assuming he was referring to sterling). The Fines Act 2010 means that the offence is now subject to a Class A fine, currently up to €5,000.

I’m not aware of any more recent prosecutions but in 1953 Joseph Blowick TD was asking the then Minister for Justice Gerald Boland whether he had submitted a newspaper report on the murder of a judge‘s daughter in Northern Ireland to the Attorney General with a view to having it prosecuted under section 15.

Surely the Minister will agree that the publication of the sordid details referred to in the particular paragraph should not go at least without protest from the Minister provided that he is not statutorily debarred from making a protest to the Censorship Board? In the interests of the clean journalism practised in this country, very laudably practised I must say, surely the Minister should not allow the publication of sordid details like these to pass.

The Minister informed Mr Blowick that his officials had considered the publication but did not believe it could have been calculated to injure public morals.

It is difficult to see how the prohibition on publication is compatible with the Constitution or the European Convention on Human Rights. Even if freedom of expression were not an issue, the prohibition itself refers to both “indecent matter” which would be defined quite differently today than in 1929. Another difficulty, as was the case with Mr Blowick’s complaint in 1953, would be in proving that the publication was “calculated to injure public morals”. It is a mystery how Mr Boyd was found to have done so in 1929.

There is nothing super about these injunctions

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.

Regional papers got that regional knowledge, right?

The Limerick Leader is one of those great regional titles with local knowledge and the occasional huge national story. They publish a West Limerick edition which this week includes a special feature on Newcastle West, the biggest town in the area.

I was drawn to the “Things to do in Newcastle West” section.

Eager to see if there was anything on the list I hadn’t done, I was surprised to fall at the first hurdle:

1. Discover the Bogey Hole: a hand-hewn ocean rock pool …

Hold on just a minute, thought I, there’s a hand-hewn ocean rock pool in NCW and no-one told me!

… carved out of a cliff face by convicts in the 19th century under the direction of James T. Morisset, the military commandant in Newcastle from 1819-1822, who used it for his personal bathing.

I’m no local historian, but this didn’t sound right. The later reference to scenic “Newcastle Beach” (NCW is landlocked) sealed the deal.

From where, one might wonder, would such a top 10 list originate? Why, here it is, verbatim apart from the addition of the word “West” in the title, on the website of Travelodge Hotels Australia.

So that would be the top 10 things to do in Newcastle, New South Wales.

Unfair advertising actions are not just for big business

[Updated 5/4/11 re. Cork Independent] What can a business do if a competitor engages in unfair advertising? The Competition Acts 2002 and 2006 deal with anti-competitive practices but these mostly involve cartel operations and abuse of dominance.

In the past, trade mark and passing off actions have been used to stop comparative advertising, but this had the unsatisfactory result of often blocking any form of comparative advertising, rather than just unfair comparative advertising. Most businesses are still very cautious when it comes to comparative advertising, but the trade mark problem was resolved somewhat by the ECJ decision in the O2 bubbles case: a competitor can use another’s trade mark once it does not confuse the public.

The European Communities (Misleading and Comparative Marketing Communications) Regulations 2007 updated Irish advertising law and supplement the unfair marketing provisions in the Consumer Protection Act 2007 and the non-statutory ASAI Code. A summary of the Regulations and available remedies is available here. The Regulations are not widely known among Irish SMEs, but that is changing fast.

Last year, Tesco sought an injunction under the Regulations against Dunnes Stores. The Irish Times reported:

Tesco had sought to stop Dunnes from running allegedly misleading price comparison advertisements in the run-up to the lucrative Christmas shopping spree. Tesco claimed Dunnes promotional advertisements made direct and unexplained comparisons with Tesco’s standard prices and misled customers by failing to compare like with like. Dunnes argued that its advertising campaign, in which it highlighted its lower prices, was incapable of misleading consumers.

Tesco failed to get an injunction because the High Court cannot grant a temporary injunction in this type of case (ironically, this is due to an earlier Supreme Court judgement in a case taken by Dunnes Stores). Miss Justice Laffoy’s decision does not mean that Tesco has lost or that Dunnes’ ads were not misleading: it only means that Tesco must pursue their complaint to trial of the full action.

Remedies under the Regulations can also be sought in the Circuit Court, where costs are lower. Recently, the Cork News took a case against rival paper the Cork Independent under the Regulations. As reported by the Phoenix (28(11) p.7 (11/06/10)):

THE freesheet Cork Independent was forced to admit in the Cork Circuit Court recently that it had been boasting false circulation figures to advertisers and was ordered by Judge Con Murphy to publish corrective figures. … The Cork Indo had been boasting circulation increases of 10,000 up to 65,000 in a series of full page adverts for the best part of two months up to January last. But the Cork News argued that the Cork Indo’s actual print run was only 43,000 for certain parts of the same period.

Judge Murphy ordered the Cork Indo to inform its advertisers via the newspaper of its real circulation figures last November and also ordered both papers to publish its current circulation figures.

[Update: There have been further developments in the dispute about circulation figures between the two newspapers, with the Cork Independent successfully defending a circulation challenge from the Cork News. The exact nature of the challenge is unknown.]

Tesco v. Dunnes Stores was an intensification of an existing battle between two enormous companies, but the Cork newspapers case suggests smaller Irish companies are now paying more attention to the legislative rules applicable to advertising, especially when it comes to advertising by competitors.

[Incidentally, an advertisement published by a solicitor can neither reflect unfavourably on other solicitors nor suggest specialist knowledge superior to other solicitors, which removes any real possibility of comparative advertising.]

The IMRO/YouTube licence

IMRO’s licensing methods has been a hot topic recently due to its demand that Irish music bloggers pay licence fees to play music on their sites. While non-profit bloggers are understandably disappointed to learn that they may have to pay €150-€300 annually to host music, even if the musicians have provided them with the music, such a licensing scheme does not threaten to destroy the native music scene, as some have suggested.

Workarounds are possible and Nialler9, along with many comments, have pointed to the possibility of simply linking to the relevant songs if they are hosted elsewhere. One such possible host is YouTube, which reached a licence agreement with IMRO/MCPSI this year. Little detail of that licensing deal is available on IMRO’s website and no information appears to be available on YouTube’s website. So I began to wonder: does the IMRO/YouTube licence cover synchronisation rights?

Copyright can be carved up a number of ways and a copyright owner can licence or assign different parts or uses of their works. For example, on joining IMRO, a musician assigns his/her performing rights to IMRO. This means that IMRO collects royalties for that right on behalf of the musician and the musician no longer has any performing rights in the music covered by IMRO. Therefore, if an IMRO member sets up a blog and streams his/her own music on that blog, (s)he will still need an IMRO licence to do so.

Synchronisation rights are the part of copyright that cover the use of work in conjunction with other media. A common example is advertising: when you use a backing track in a television ad, you need a synchronisation right licence because you are synchronising the music with film footage. In everyday language people might refer to seeking permission or clearance to use the music – what is being sought is a synchronisation licence.

If you made an ad for a once-off broadcast at an event, such as on big screens at a music festival, you (or the festival organisers) would need:

a synchronisation right licence to make the ad;
an IMRO/MCPSI licence; and
a PPI licence.

MCPSI (effectively a limb of IMRO) can provide synchronisation licences for some music but this must be checked on a song-by-song basis and some songs must be licensed directly from the musician. Generally, the more successful the artist, the more likely a licence is required directly from them (and the more expensive that licence will be).

It would appear that the IMRO/YouTube deal covers the playing of music on YouTube in the same way a music festival might get an IMRO licence. That does not mean, to take my example above, that the synchronisation of music in an ad is necessarily covered. Some music on YouTube is uploaded by the record company or artist responsible along with the music video that accompanies it and therefore no new synchronisation occurs. However, a huge amount of YouTube videos involve new synchronisation: whether involving the use of music as a backing track to a home movie or where a user has created their own music video to accompany a song.

I asked IMRO if these uses are covered by the licence agreed with YouTube and a definitive answer was not available. However, it appears that:

The IMRO/YouTube deal allows the use of music with third-party video if the musician has assigned their synchronisation rights to MCPSI or a foreign equivalent which has a co-operation agreement in place with MCPSI.
If the musician has retained their synchronisation rights, individual permission must be sought where music is to be used in conjunction with third-party video.
This means that, despite the IMRO/YouTube licence, certain musicians might still be able to have videos taken down or the sound removed from them.

If this summary of the position is correct, full rights clearance of a video uploaded to YouTube requires a song-by-song check with MCPSI to see if that song is covered by the IMRO/YouTube deal.

IMRO vs. The Blogs: collective licensing of music

© Time Inc — "The collective licensing revenue streams, they are a-changin'."

Controversy broke out this week when Nialler9, an influential Irish music blogger, publicised IMRO’s demand that music bloggers pay for a Online Exploitation Licence. [Update: a group of Irish music bloggers met with IMRO on 6 May 2010 to discuss their concerns. Read about the meeting here.]

Like many blogs, most Irish music blogs are run at no, or very little, profit. Comments on the main posts about the issue generally share a sense of outrage and a belief that IMRO’s demands will damage new Irish music.

Incredulity is also expressed that the bands involved generally provide the music to the bloggers in the hope that it will be promoted online. The Guardian sums up the issue as follows:

If IMRO goes ahead with its plan, targeting music blogs around the world, there will soon be legions of frustrated bloggers. And it will be much worse if other regional publishers follow suit. While the organisations’ hearts may be in the right place – looking to buoy a flagging industry – we just hope they are going about it the right way. Will forcing the closure amateur music blogs make songwriters richer? Or precisely the reverse?

Collective licensing is a somewhat complicated area but it is reasonably certain that, whatever enforcement steps IMRO might or might not take against individual bloggers that refuse to buy a licence, it is highly unlikely that any agreement will be reached to exclude blogs from the licensing regime. [Update: However, it appears from the meeting between music bloggers and IMRO, mentioned above, that a new form of non-commercial licence might be considered.]

Collective copyright licensing

Individual collection of royalties from music users by music owners is extremely impractical. Therefore, a system of collective licensing has been established where by a licensing society can be set up, with rights to grant licences to play music on behalf of a class of copyright owners. The Copyright and Related Rights Act 2000 provides that music can be played in public or broadcast if the appropriate fees have been paid to the relevant licensing society.

The most well-known such society in Ireland is IMRO, which collectively licenses the performance rights of copyright musical material (ie. the part of a musician’s copyright relating to the public performance of their work). It collects over €30 million in royalties annually, which are distributed to its members.

There are other collecting societies that license other copyright works, such as the Newspaper Licensing Agency and the Irish Visual Artists’ Rights Organisation. IRMA is an association of record labels and is not a collecting society.

Comments on the blog posts already mentioned point to the fact that the musicians involved authorise the use of their music on a particular music blog. Nialler9 refers to his understanding of the situation, prior to hearing from IMRO.

Like many I thought that MP3s which were cleared by bands and labels for promo were provided as is – gratis and without any attachments or additional requirements other than to promote the band and song. Y’know, the same way an entire music blogosphere and a digital PR industry has been allowed to grow up over the course of the last 10 years thinking the same.

However, musicians can only licence the rights which they retain. If they have joined IMRO, they have entered into an agreement with the organisation. The first substantive clause (clause 2) of that agreement provides that the musician is assigning (ie. transferring) all their performing rights to IMRO.

Accordingly, IMRO members cannot grant a blogger a licence to the performing right in their music because they no longer own that right.

Controversy

The collective licensing system has not been uncontroversial. Similar arguments to those now raised by music bloggers were aired over a decade ago by independent retailers and coffee shop owners who felt that they should not have to pay an IMRO licence fee to promote new and local musicians in their premises.

One might wonder why IMRO has begun to target bloggers now; the answer probably lies in the comment quoted above from the Guardian. As music use changes, collecting societies are tracking new and increasing sources of revenue from such use.

In 2004, the European Commission warned sixteen collecting bodies that an agreement between them was potentially in breach of competition law on the basis that it proposed to carve up online music licensing on a national basis. The Commission published a recommendation in 2005 which said that the industry should be free to set up EU-wide collecting societies or to allow national societies to licence on an EU-wide basis.

Disputes

In Ireland, the Controller of Patents, Designs and Trade Marks deals with disputes regarding royalty rates charged by collecting societies.

[A]nyone who considers that they have unreasonably been refused a licence by a collecting society or considers the terms of an offered licence to be unreasonable may refer the matter to the Controller.

The terms of an offered licence include the proposed royalties or licence fees.

IMRO is not a one-stop shop

So: permission from a musician does not necessarily extend to a licence to use music online; neither does an IMRO licence give a full licence to use the music.

This is a common misunderstanding. Different venues and uses may require a combination of licences from IMRO/MCPSI, PPI, the record label responsible for the recording and/or the songwriter. For certain commercial uses of specific pieces of music, a licence from all of these parties might be required. Therefore, it is important to check with IMRO or a professional adviser as to what licences are necessary.

Graduated response now de facto law in Ireland

[Updates at end] The Irish record industry, like its international siblings, has given up pursuing individuals in its war on filesharing and is focusing instead on the use of “three strikes” disconnection, sometimes referred to as graduated response. This involves a rightsholder, usually a record label or movie studio, notifying an ISP that it believes a particular IP address has been used for unlawful downloading of copyright material. On the third complaint, the ISP disconnects the user of that IP address.

The Irish industry took a test case against the biggest Irish ISP (EMI & ors v. eircom) for allowing its network to be used for unlawful downloading and the proceedings resulted in a settlement whereby eircom agreed to introduce a graduated response system.

The graduated response is to be introduced into UK law as part of the recently passed Digital Economy Act 2010. In that jurisdiction, it was subject to scrutiny, debate and critique by academics and commentators, which might not constitute scrutiny at all given that it sailed through Parliament. In Ireland, it is creeping in by private agreement between the main players (a development which is not unusual in Ireland).

The settlement between the industry and eircom had to be revisited in the High Court to determine its compatibility with the Data Protection Acts 1988 and 2003 and Mr. Justice Charleton delivered his judgment last week, concluding that the system can lawfully be implemented.

Professor Lillian Edwards said the following of the proposed UK system:

All a rightsholder need do, as presently laid out, is provide an IP address and time stamp of an alleged infringer to an ISP, and say that “ it appears to [them that ] a subscriber .. has infringed the owner’s copyright”. There is no requirement this belief be objectively reasonable. Nor is there any apparent sanction for malicious, or even simply careless or reckless allegations. Recent experience with the RIAA and BPI has shown that allegations made after IP address tracking at P2P sites often turn out to be wrong and that collecting IP addresses from P2P honeypots is a non-trivial exercise ; so the issue of liability for erroneous accusations is an important one. Libel, malicious falsehood and data protection laws may offer remedies for the falsely accused; but there is no mention of such in the Bill itself (so far), nor of any reasonable duty of care. In other words, all the power is given to rightsholders, and none of the responsibility. (My emphasis)

In his judgment, Charleton J. explains the eircom system as follows and Professor Edward’s comments would appear equally applicable:

Under the terms of the settlement, these companies tell the plaintiffs that a particular computer has been involved in illegal file sharing of its copyright material. This information is passed by one of the plaintiffs to the defendant Eircom, as the internet service provider. It then informs its subscribers that they have been detected infringing copyright. If there is a second occasion of illegal downloading, Eircom is obliged, when so informed, under the settlement to write to the subscriber warning them that unless that sort of infringement ceases, they will be disconnected from general internet service. This disconnection does not apply to any telephone or television service that a subscriber gets over their internet facility. On a third infringement, that discontinuance is implemented by Eircom: the subscriber is taken off service except for phone or television internet access.

Charleton J. acknowledges that disconnection is a “serious sanction” and that some would argue it is an “imposition on human freedom”. He quite rightly points out that “[t]here is no freedom, however, to break the law.” However, disconnection could affect an entire household, for example, and it is difficult to accept the justification offered that internet cafés are available to the disaffected and disconnected.

[W]hile it is convenient to have internet access at home, most people in Ireland have only to walk down to their local town centre to gain access for around €1.50 an hour.

Rightsholders are entitled to protect their rights, but should they be entitled to have a utility disconnected on the basis of their unscrutinised claim that the utility has been used to infringe their rights? As one wry tweeter put it:

Charl[e]ton J’s decision in eircom is as if NTR allowed to ban u from driving b/cos Quinn Direct said u crashed into 3 of its policy holders.

Part of the eircom settlement reportedly required the industry to pursue eircom’s competitors and seek implementation of the same system: rather weak letters before action were duly sent to all other Irish ISPs (including those who do not provide internet access to end users) and proceedings were instituted, due before the Commercial Court this summer. It had been anticipated that the other ISPs might defend the proceedings strenuously, though one wonders if Charleton J’s judgment might have any influence.

The most remarkable thing about the judgment is the fact that the Data Protection Commissioner, whose questions to the High Court formed the basis for the judgment, did not appear at the hearing because of cost concerns.

One wonders what the purpose of the Commissioner’s is if not to appear in such a case. After all, his office appointed a panel of four commercial law firms to advise on the full range of powers and obligations under the Acts only a few months ago. His participation might not have changed the outcome, but as Ireland’s data protection regulator and representative member of the Article 29 Working Party (which has examined the nature of IP addresses under data protection legislation) his office’s participation should be automatic.

While Charleton J’s judgment ostensibly deals with data protection concerns, it makes his views on the wider issue of unlawful downloading clear. David Brophy points out that, not only was the Commissioner not represented at the hearing, nor was any consumer or digital rights advocacy group. He also notes the tenor of the judgment which, although ostensibly concerned with a set of data protection questions, is loaded with pro-indsutry language.

The judgment is particularly striking for the language used to describe the act of copyright infringement (“theft”, “stealing”, “filching”), and the data subjects, whose interests the case is of course addressing, become “copyright thieves” when their IP addresses have been identified as having been involved in file-sharing.

In fact, Charleton J. appears to take the plaintiffs’ assertions at face value and states that “the entire purpose of this litigation is to uphold the law.” He refers to “data protection entitlement” in the same paragraph as a “fundamental right to copyright”.

This appears to suggest that one’s data protection rights are a form of State-granted beneficence, to be measured against the human right of copyright. It should be remembered that, in this scenario, the data subject is an individual internet user; the copyright owner is a multinational corporation.

Updates

The International Federation of the Phonographic Industry welcomed the decision in Ireland, saying that it “sends a strong message to governments that are now considering how to help their creative industries address the threat of mass online piracy”. The IFPI says that the judgment confirmed the legality of a graduated response system, which is not quite accurate: the High Court decided that the settlement agreed between the parties was not incompatible with the Data Protection Acts.
UPC Ireland, owner of ChorusNTL, said that it will continue to vigorously defend proceedings brought against it by EMI & ors seeking the introduction of the same graduated response system. UPC rightly points out the point made above (that the decision merely decides on compatibility with the Data Protection Acts) and says “there is no basis under Irish or European law requiring an ISP to monitor or block subscriber traffic on its network.”
Cory Doctorow said that the judgment means that “Ireland has now joined the exclusive club of nations that treat the Internet as a trivial system for pirating movies, worthy of no special consideration. They’ve joined the club of nations that are willing to collectively deprive innocents of access to a single wire that delivers freedom of speech, press and assembly in order to put a few more Euros into the pockets of some of the largest corporations in the world.”
Ars Technica said “The issue isn’t about “freedom to break the law,” but about proportionality. Does the punishment fit the crime (which is not, in this case, even a “crime” but a civil matter)?”
p2pNet said “Whenever the IFPI … or any of Vivendi Universal, EMI, Warner Music and Sony Music’s other ‘trade’ outfits applauds a court ruling, you know it can’t be good for anyone except the Big 4. And when U2’s other big mouth, manager Paul McGuinness, chips in, it’s confirmed.”
Not an update as such, but Digital Rights Ireland published a post last year on why the graduated response agreement is bad for internet users. It still applies, post-Chartleton J’s judgment.

Will less public justice mean more public suffering?

The Criminal Courts of Justice was the first major courts facility built in Ireland since the Four Courts in the late 1700s and, at a cost of €140 million, holds great promise for the contemporary administration of justice. A controversial consequence of the Court’s design is that accused persons are no longer led into court in public view, complicating the job of the court photographer.

It appears that the role of the media was not a significant factor in the design of the Courts. Abigail Rieley covered the Lillis trial and blogged about the facilities provided to journalists:

If you are a journalist however the new courts pose quite significant problems. Once again the concept of designated seating for the media has been ignored and a single bench provided, if we’re lucky enough to get to it before someone else is sitting there. The new media rooms, which we had been promised such great things about, turned out to be two bunkers on the ground floor, next to the toilets. Low ceilinged, with no windows whatsoever the new rooms are little more than boxes.

Difficulties with the facilities erupted into controversy during that trial when one witness was given extensive Garda co-operation to facilitate her arrival and departure from the Courts without being captured on film. It was suggested that the witness in question might not have given evidence but for the privacy provided. However, many pointed out that she was unlikely to be a crucial witness in the prosecution. Diarmuid Doyle notes the danger that the behaviour of the authorities in the Lillis trial may give rise to a hierarchy of witnesses (albeit this point appends what appears to be a misunderstanding of the argument that photography should be allowed to ensure the public administration of justice).

The restrictions on photographing accused and convicted persons appear to be spreading and the Courts Service has ruled out releasing mugshots. Paul Cullen quotes the Court of Criminal Appeal in the People (DPP) v. Davis [2001] 1 IR 146:

The dignity of the individual, and the perception that he is a participant in judicial proceedings with specific rights, and on a footing of equality with other participants, is inconsistent with his appearing there chained, manacled, handcuffed and chained, or otherwise manifestly restrained.

But what of a person found guilty of a crime? Rieley continued her criticism of the Courts in the Evening Herald under the provocative headline: “Why do the authorities care more about the privacy of criminals than the public’s right to know?“:

The media facilities have the feeling of a being a grudging after-thought, a sop to a group of pests who are barely tolerated at the best of times. This goes to the heart of the Courts Services’ attitude towards the press. The idea that the media are public representatives seems to be a foreign concept. Justice has to be carried out in public, as laid down in Article 34.1 of the Constitution and it’s through journalists that this happens in the main.

A further concern is that, with no accused person to photograph, the lens will be turned on someone else. A small example of this appeared on the Nine News on 19 February, when a remarkably brave victim of rape waived the anonymity available to victims of sexual assault and made a statement to the media.

The convicted offender could not be filmed, so the report relied on file footage and newspaper photographs. The victim made her statement direct to camera and yet this was, apparently, not enough. She was pursued to the door of a waiting car and filmed until it drove away.

Endnote:

The Irish Times, on the opening of the Courts, said that “[p]eople charged with criminal offences will no longer be brought to court handcuffed and in public view”. The change was widely reported as such though it should be noted that female prisoners, even when accused of serious and violent crime, are rarely handcuffed when being led into jail. John Waters has written about the sexism inherent in this practice.

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.