Bismark reputedly said that nobody should get too close to the making of laws or sausages.

On Thursday, on behalf of the StopSOPAIreland.com campaign, I took a trip to Leinster House, to catch a glimpse of the sausage machine at work.

Together with Ian Breslin, who runs the Facebook campaign, and TJ McIntyre of DRI, I met with Catherine Murphy TD to discuss her scheduled exchange of questions with Minister Sherlock.

We experienced the minute-by-minute changes of timetables and proposals in relation to the disputed Ministerial Order.

We had originally believed that there would be a full debate that day on the matter. Instead, on arrival, we learned that instead there was to be a tightly structured 8 minute exchange of statements between Derek Keating for FG and Catherine Murphy for the Technical Group of Independents.

To put it at its lowest, this didn’t really seem to meet the needs of the situation.

Nonetheless, there was still the possibility being held out of a further, fuller debate. But when that debate might be- including rather incredibly, whether it would be held before or after the law had been signed- was subject to, um, flux. In all senses of the word.

While we were in the building, we took the chance to bend the ear of any friendly faces we happened upon. They all told us that the issue of the SOPAIreland Order had become one of the hottest potatoes in the Dáil in a bewilderingly short time. One TD told us that, a week ago, this proposal hadn’t had any kind of attention.

“But now…” he said, trailing off.

More than one TD spoke about getting hundreds of emails and what did or didn’t work as a lobbying tactic. Being civil was good. Basing an argument on logic, rather than threats was another point that got the thumbs up. (This was contrasted with what might have worked in the, shall we say, recent past). All expressed dismay at the impact of hundreds (or 50,000) of emails all arriving into an individual’s inbox. “After a couple of hundred, you’re just hitting delete.”, we were told by a TD’s assistant.

I suggested that the TDs offices were probably experiencing the inevitable consequence of the lessening of friction inhibiting communication between constituents and their representatives. Our campaign emails (ie your emails), it was acknowledged, were of a sort not usually seen. “These people, they represent a usually silent group – the people who really know about the internet”, as one other TD described them.

We then decamped to the Visitor’s Gallery, in time to see Catherine Murphy’s opening question to Minister Sherlock. I needn’t describe it for you- here’s the video:

SOPA Ireland in the Dáil

Today started with more Digital Rights Ireland business- of the courtroom kind- before easing off a little. The Minister had rounded off the night before by confirming that he would hold a Dáil debate before, rather than after, the passing of the SOPA law into force.

That he had been unable to confirm that order of events on Thursday gives a little peep into the kind of day he’d been having.

By 4.50 today, Catherine Murphy TD (a former client) was able to confirm that the debate would go ahead on Tuesday evening at 5.30pm and last 50 minutes.

Just received word that next week's debate on #sopaireland will take place on Tuesday at about 5:30pm. May be subject to change.

about 16 hours ago via webReplyRetweetFavorite

@CathMurphyTD

Catherine Murphy

Last week, this law wasn’t going to be published.

Last week, there was no media attention for this proposal.

Last week, there wasn’t any possibility of the matter going to Cabinet to be discussed.

Last week, the idea of a Dáil debate on this Ministerial Order would have been absurd.

“But now…”

Thank you all.

Sent this evening.

Legitimate Copyright Protection in Ireland: not SOPA – Sherlock
We all subscribe to the freedoms, the opportunities and the access to information that the Internet provides us with. Ireland is home to some of the world’s most innovative internet companies and we are determined to grow our reputation as a location where smart people and these smart companies can continue to innovate in this fast moving arena.
The last thing innovators need is a culture where the outputs of their creative endeavours have to be locked away or kept secret for the fear of theft. Ireland is very proud of the fact that we have a modern suite of intellectual property laws that by their very nature balance a range of competing interests and rights in a manner that is seen, right across the globe, as reasonable and proportionate.
Going right back to 22 December , 2002, the date by which every EU Member State had to have implemented Directive 2001/29/EC, every EU country has had to “ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by third parties to infringe a copyright or related right”. Having that provision enshrined in EU law and the laws of Member States for a decade has not restricted the development of the Internet or innovative internet companies. On the contrary, the Internet has flourished.
It may be useful to explain the background against which the requirement for the amendment to the Copyright and Related Rights Act 2000 has arisen. In the EMI & others versus UPC High Court judgment of 11 October 2010, Mr Justice Charleton decided that he was constrained by the wording of the Copyright and Related Rights Act 2000 and thus could not grant an injunction to prevent infringement of copyright against an information service provider (ISP) in the circumstances of “mere conduit” (transient communications). In doing so, he stated that Ireland had not fully transposed the relevant EU Directive(s). As you will appreciate, non-compliance with EU law is a very serious matter.
The “Mere conduit” principle provides that if an ISP does not initiate a transmission, or modify the material contained in a transmission and does not select the receiver of the transmission, it is granted a “safe harbour” against liability, by virtue of the e-Commerce Directive [2000/31/EC]. However, according to the same directive, this freedom from liability does not affect the power of the courts to require service providers to terminate or prevent copyright infringements.

As far as can be ascertained from the judgment (the State was not a party to the case), the type of injunction sought was to require UPC to prevent infringement of the record companies’ sound recording copyright, through its internet “peer-to-peer” services, possibly involving a “three strikes and you’re out” scenario. This is where the ISP sends three warnings of increasing severity and if the infringement continues, discontinues access to the Internet. It is sometimes referred to as a “graduated response”. I understand that blocking access to infringing online sites may also have been sought.

Two EU directives (the Copyright Directive 2001 and the Enforcement Directive 2004) require that the holders of copyright – authors, music composers, lyricists, record producers etc. – are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.

The Department of Jobs, Enterprise and Innovation had considered that injunctions were available under Section 40 (4) of the Copyright Act and the inherent power of the courts to grant injunctions, which are equitable and discretionary remedies, granted according to settled principles, developed by the courts. However, this was not Mr Justice Charleton’s view. The record companies did not appeal the High Court decision and, consequently, the State has not had an opportunity to put forward its views on the legal principles involved nor on the construal of the relevant sub-sections of the Act, which we feel were not fully explored in the judgment.

The Attorney General’s Office was then asked (both by this Department and Department of Communications, Energy and Natural Resources) for its advice as to the implications of the High Court judgement. The prudent course, he advised, would be to introduce a Regulation to ensure compliance. After consultations with the Attorney General’s Office and the Department of Communications, Energy and Natural Resources, this Department launched a public consultation on the text of the proposed Statutory Instrument. The consultation attracted over 50 submissions from interested parties. For the avoidance of doubt, the Government has decided to introduce a Statutory Instrument to restate the position that was considered to exist prior to this judgment.

Concerns have been expressed that the proposed Statutory Instrument mirrors the Stop Online Piracy Act (SOPA) in the United States. These concerns are not based on fact. The purpose of the Statutory Instrument is simply to provide explicitly that injunctions may be sought, as obligated by the two EU Directives cited above. It should also be noted that such injunctions are available in all other Member States of the European Union by virtue of the two Directives already referred to. In granting such injunctions the courts must take account of Court of Justice of the European Union judgements. These require that a fair balance be struck between the various fundamental rights protected by the Community legal order and the principle of proportionality. That would include, inter alia, the protection of the fundamental rights of individuals who are affected by such measures, the freedom to conduct a business enjoyed by operators such as Internet Service Providers, the protection of private data and right of freedom of expression and information.

In proposing to amend the legislation, I am particularly conscious of the importance of online content and digital businesses in the Irish context and, accordingly, am simply seeking to ensure Ireland’s continued compliance with its obligations under the relevant EU Directives following the decision of the High Court in the aforementioned UPC case.

I trust that this information will clarify the issue.

You will have noticed the black banner across the top of our site this week.

You may also have noticed the sudden flurry of media appearances and debates on radio around the issue of Minister of State Sean Sherlock’s plan to introduce a law to allow the music labels (and other copyright holders) to seek injunctions forcing Irish ISPs to block access to sites they don’t like.

“I will introduce this imminently, by the end of January.”
- Minister Sherlock, Sunday Business Post, 22^nd Jan 2012

This SOPA Ireland law, as it is is called, is similar to the proposals defeated in the US only a week ago after a mass uprising of grassroots protest- first from Reddit, and then joined by the biggest names on the net- Google, Wikipedia and so on.

However, unlike that US law, people here can’t even expect to have this blocking law debated in their legislature. The Minister has said that he intends to deal with the matter by way of a Ministerial Order. Nor has he published the text of the law. The first we, the people of Ireland, will know about the text of this law will be when it is signed and brought into force.

This is grossly wrong. This is why we were so enthusiastic when Sabrina Dent suggested that we launch a petition website to let other people (a) know what was going to happen and (b) tell the Ministers responsible that they object to the proposal.

That was long, long ago now. Monday morning to be exact. Since then, 30,000 people have emailed the Minister for State Sean Sherlock and Minister Richard Bruton at the Department of Jobs, Enterprise and Innovation to tell them they DO NOT WANT.

I, Richard Bruton, Minister for Jobs, Enterprise and Innovation, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) and for the purpose of giving further effect to Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society [1], as amended by Corrigendum[2], hereby make the following Regulations:

- Opening paragraph of the leaked Draft Text of the Ministerial Order

Minister Sherlock has been traveling around the airwaves acting as a recruitment sergeant for the petition by providing worrisome, self contradictory, “reassurances” about what he intends to do.

All in all, so far, our Public Interest Campaign site has facilitated a very successful piece of civic action.

But more will need to be done. Minister Sherlock has said that he intends that Richard Bruton will bring the Ministerial Order to Cabinet.

This is, to put it mildly, unusual.

A Ministerial Order (otherwise known as a Statutory Instrument) is only intended to bring in secondary legislation -ie, tidying up the administrative side of policies and laws already passed through the Oireachtas after proper debate.

On 29^th July 2011, the Minister was put on notice of this difficulty when Digital Rights Ireland (our client) wrote to his Department;

It is significant that Charleton J. in EMI v. UPC [2010] IEHC 377 referred to any legislative intervention being properly a matter for the Oireachtas. The Opinion of the Advocate General in Scarlet (Extended) v. SABAM (Case C-70/10) similarly referred to a need for legislation in this area to be “democratically legitimised” (at para. 113).

It would be undesirable in any event for a matter dealing with fundamental rights to be disposed of by way of secondary legislation. It is all the more undesirable in this case, however, given the vague and open-ended nature of the powers involved. This is, in effect, a case of delegation heaped on delegation – rather than rules governing blocking and other remedies being made by primary legislation, or even secondary legislation, they are instead effectively being made by delegation to the judiciary.

The new plan to bring the matter to cabinet is an admission of the truth of that argument. But a discussion behind closed doors amongst a handful of Ministers is not good enough.

If a matter is so significant, contentious and complicated that it must be debated by Cabinet, by definition, it is not a matter which is suitable to be brought in by Ministerial Order without public debate and without careful scrutiny of the proposed text.

Ministers Bruton and Sherlock must now bring a Bill before the Oireachtas and let the sunlight in. This issue is too important to be left to the murk of backroom deals.

1. The number of applications to the Injuries Board has increased steadily over the last five years. However, the rate at which the respondents are agreeing to an assessment (by paying the required fee) is not keeping pace with this increase. In short, the respondents are not engaging in the Injuries Board system with the same enthusiasm as time passes.
2. Each year the Annual Report of the Injuries Board tells us the Fee income from applicants and from respondents, respectively. It also tells us, somewhere, what the fees are for each.
3. So, for 2010, we can calculate that there were 25,767 applications to the Injuries Board. (The Board claims there were 26,964). In that year, only 12,732 respondents paid a fee. (The fee was €1050; it was reduced in 2011). That means that 13,035 applicants, more than half, were left without an assessment. (They get a certificate of authorisation instead).
4. The Injuries Board persists in using the word “award” when it means “assessment”. We know this because it also refers to “accepted award”. This use of language is misleading.
5. Taking this into account, we can see that the figure for acceptances in 2007 is almost the same as the figure in 2010, despite a substantial increase in total claims and a substantial increase in participation by respondents. There were 5,038 acceptances in 2010.
6. Interestingly, the figure for assessments for those two years is almost the same. (8,208 in 2007 and 8,380 in 2010).
7. That implies that there are more problematic cases appearing in the Injuries Board case load; or, that the Injuries Board is becoming more discriminating as to the complexities of personal injury claims.
8. Or, that the medical profession is not keen to run the risks that the Injuries Board system is potentially transferring to it. Errors in assessment (barring a constitutional action yet to come) cannot result in a liability for the Injuries Board, but that is very likely not true of the doctors working for the Injuries Board/respondents. Unlike the Injuries Board, they are not statutorily licenced to make mistakes with impunity.

1. I have been injured; will the person who injured me, or his/her insurance company, hasten to fully compensate me?

No, they will not. This is human nature and also implied in the social arrangements under which we live.

2. Will the Injuries Board ensure that my interests are fully looked after?

No, it will not. It has a limited focus. It only addresses one question; the level of compensation the injured person ought to get. It does little to ensure that you will actually get your compensation.

3.         How can that be?

An injured person will get nothing unless he/she can prove, if necessary, that some other person has been at fault and that the injury results from that fault. The Injuries Board expressly excludes consideration of fault.

4.         Surely that’s a good thing?

Yes, if the person who injured you expressly admits the fault.

5.         Will that happen in the Injuries Board system?

No, it never comes up for mention.

4.         Who will look after my interests, then?

You will.

5.         How do I do that?

By fully understanding what is implied in the Injuries Board system.

6.         What is implied in the Injuries Board system?

The Injuries Board system exists to ensure that any legal costs incurred by you as a result of your injury will be borne by you and not by the person who injured you.

7.         Is that true?

Not completely. That’s how the Injuries Board started out, but it has changed its mind. It now makes an effort to make your opponent pay for your legal representation, or some of it, if you, the injured person, are a vulnerable person.

8. I have been injured. Am I not vulnerable by that fact alone?

No, not in the view of the injuries board. In the view of the person from whom you are trying to extract compensation, or his/her insurance company, yes, you are vulnerable, but that is advantageous to them and they owe you no duty to reduce your vulnerability.

9.         I am inexperienced in these matters. Am I not vulnerable by that fact, then?

No, not in the view of the injuries board.

10.       What is a vulnerable person, in the view of the Injuries Board?

Someone who needs legal advice to make the application to the Injuries Board.

11.       But surely no such advice is necessary?

The Injuries Board thinks it is sometimes. If you are a vulnerable person.

Since 2004 the limitation period within which an injured person must issue personal injury proceedings, before being barred from bringing such a claim, is two years.

Because such a person is [generally] obliged to apply to the Injuries Board for an assessment of the value of the person’s claim before proceedings may be issued, time is suspended from running under the limitation period while the Injuries Board is considering the application (and, possibly, corresponding with the guilty respondent or his/her insurance company). Not only does time not run during that period, it does not commence running again for six months after the Injuries board issues its authorisation to the injured applicant to issue legal proceedings.

There is an exception to this regime; if the guilty respondent dies at some point the injured applicant has two years to issue legal proceedings from the date of the death of the guilty respondent. This time period, it appears, does not cease to run because the applicant has lodged an application to the Injuries Board.

It is very possible for an injured applicant to know nothing of the personal circumstances of a guilty respondent. Even the Injuries Board may know nothing of those circumstances; the Board will carry on correspondence with a lawyer or an insurance company acting for the respondent (who, in their turn, may also not know of the state of health of the respondent).

The Injuries Board claims to process applications, on average, within approximately seven months of an application. Depending on the facts of the case this may not be fast enough.

The risk of loss in these circumstances lies with the injured applicant, not with the Injuries Board.

Like all institutions, it is insulated from the effects of death.

The Annual Report of the Injuries Board is always worth reading. It suffers from a persistent tone of self-congratulation but the Injuries Board has access to information previously possessed only by insurance companies and it publishes it, or some of it, in the Annual report and other publications.

The Injuries Board views this information narrowly. It extracts it as statistics and makes little effort to draw conclusions from it.

For instance it remarked of public liability claims for 2009;

“Females accounted for 72% of the 1443 PL awards during the period of this review – over  twice as many (2.5 times) as males. This is a direct reversal of data for workplace accidents where females account for just over a quarter (26%) of awards.”

A curious mind would ask if this is evidence of something, and if so, what? Furthermore, to what use can it be put ? The Injuries Board doesn’t ask these kind of questions.

It is reasonable to speculate that women do more shopping than men; they are more vulnerable to traps or deficiencies in premises open to the public.

If that is the case, what does it say about the Occupier’s Liability Act 1995? Was it, in effect, directed to denying the claims of one sex, women?

The Injuries Board Report goes on to say:

“Just over half (51%) of the accidents under review took place in privately owned establishments, with one in four (25%) occurring in a retail/shopping outlet, one in five (19%) in a hotel/pub/nightclub or restaurant and 7% in leisure facilities like sports clubs/gyms and cinemas. almost a quarter of PL awards (24%) were made against local authorities and a further 8% involved transport and utility services.”

This is peculiar; there is a world of difference between “accidents” and “awards”. Many people who have accidents on the public highway will fail in their claim against a local authority. The reason is, they have to show that they, effectively, were injured at a place where the authority caused the defect which led to their injury. If they cannot show that, where the defect developed from wear and tear, say, they will fail.

This aspect is hidden in the use of “accidents” and “awards”. As they say in trade union circles, one is apples and the other is oranges; in a phrase, they are not comparable.

It’s official; fingerprint evidence is a matter of opinion and not a matter of fact. This is a very interesting subject because the subject is not just fingerprints, (an interesting subject) but the things that we know and the basis for our knowing them.

For instance, Mrs. Quinn contested her liability to repay €3,000,000 to Anglo Irish Bank on the grounds that she did not know that she was borrowing the money and, in fact, never received it.

(I hope this characterisation of her position is correct. If the High Court decided to enter the modern world, it would assign to junior barristers the job of posting pleadings and affidavits, opened in court, on the internet. That would achieve two ends; to conduct its business in public and give employment to junior barristers.)

The court, reportedly, accepted the truth of her contentions but termed her negligent. By that the court meant, negligent in her own interest.

This was wise; neither Anglo Irish Bank nor the court was in a position to conclusively establish Mrs. Quinn’s state of mind in 2006 when she signed the loan documentation.

It was also unnecessary. The burden of proof on Anglo Irish Bank was on the balance of probability. Undoubtedly its loan documentation unequivocally showed that Mrs. Quinn signed up to a loan transaction. (We can know this because of what we know about lawyers; her lawyers would have pointed out any deficiencies. From reports, they did not, therefore there were none).

Consequently it was more probable that she knew what the documentation represented than not and should be held to its terms.

Of course she has a current exemplar in her view of the unreliability of her knowledge of the world. Bertie Ahern has attributed his blamelessness for Ireland’s financial disaster to the fact that nobody told him what was going on in the banks.

“If I had seen the banking crisis coming. Nobody advised me, no economist, all those people now writing books saying ‘I told you so’ – none of them.”

This presumes that we believe him. It also suggests that we can know things and that in the absence of that certain knowledge we are blameless if we are mistaken.

This writer remembers (he thinks) hearing of “culpable ignorance” , a Thomistic concept, at school.

This writer also knows, from experience, how easily people are misled by their mistaken certainties; about what they saw and whom they saw. Being correct in making an identification of persons is so fraught with error that courts must issue warnings about the unreliability of such evidence to juries where prosecutors rely on that evidence.

Notwithstanding we, all of us, can, in principle at least, be radically totally and serenely wrong, like the character in Iolanthe who

“Bound on that journey you find your attorney

Who started that morning from Devon.

He’s a bit undersized and you don’t feel surprised

When he tells you he’s only eleven”

neither Mrs. Quinn nor Bertie Ahern could plausibly sing those lines.

They each of them have lived full active lives in business and politics respectively and in the case of Bertie Ahern, he was the leader of the country, the leader of his party and memorialised by a predecessor as “… the most skilful, the most devious, the most cunning of them all”.

The singer in Iolanthe had an excuse; he was dreaming. Neither Mrs. Quinn nor Bertie Ahern can pass off their mess like that.

What is one to make of the implied threat from the Minister for Justice and Equality? He has suggested that the proposed Legal Aid strike by members of the Criminal Law Practitioners Organisation is of doubtful legality. This may just be bluster. If it is not, he will, presumably, contemplate a range of options. He might:

a)              Remove solicitor strikers from the Legal Aid practitioners’ panel; and/or

b)             Refer solicitor strikers to the disciplinary processes of the Solicitors’ Disciplinary Tribunal;

(Barristers are chosen by solicitors; consequently they, to partake in the strike, need only have a private conversation with their solicitor benefactors advising them that they are not available for work. The Minister would have his work cut out for him to access the content of such conversations, if not their effect).

He will not choose b); the Tribunal has expressed disappointment that the Minister has tabled proposals to replace them when they have, to paraphrase it, an unblemished record of doing their work.

He may not react at all. His Press Office, HERE, expresses the peculiar language adopted for such happenings;

“The threatened withdrawal of services seems to apply only to defence lawyers operating under the criminal legal aid scheme…”

Well, yes.

They were the very people whose incomes were being cut by the Minister and who made the complaint to him. His response was to cut the incomes of other lawyers, as if the substance of the initial complaint was a demand for absolute fairness, even in misery.

Those other lawyers are barristers briefed by the State. No solicitor on the Legal Aid panel works for the State in prosecution work and vice versa. State prosecutions are taken by various solicitors appointed for that purpose in, effectively, County districts around the country. For good and obvious reasons they do not offer services to the general public for defence work.

The Minister says:

“The Minister has invited the Criminal Law Practitioners Organisation to furnish to him their proposals for reducing the cost of Criminal Legal Aid whilst continuing to ensure that the rights of alleged offenders are being protected.”

This is provocative. The Minister means by this:

“The Minister has invited the Criminal Law Practitioners Organisation to furnish to him their proposals for reducing the [fees paid to criminal law practitioners…]”

The Minister’s mode of expression is a “first strike” in a blame game where the Minister’s antagonists are weak and disparate and their work is obscure to most citizens.

The title to this post is tongue-in-cheek. It is the appellation attached to one High Court judge, deemed too generous to personal injury plaintiffs, by a politically well-connected barrister.

It is worth bearing in mind that the plaintiffs will have successfully overcome many difficulties. They will have established that their defendant breached any number of duties owed to them. (See HERE for the Health & Safety Authority’s Guidance on Manual Handling of Loads. Breach of the Regulations referred to in the Guidance is a breach of a statutory duty; negligence aside, to breach the Regulations is sufficient to trigger a liability. Claims arising from back and similar injuries are some of the most intractable faced by lawyers and judges).

The legal industry in Ireland is small. It is a certainty that “Santa’s Grotto” heard of his new nickname and was intended to hear of it. It was, objectively, calculated to curb his “excesses” in the award of damages to personal injury plaintiffs.

It is an issue of interest to know which of these persons, the judge or the barrister, was right about the value of personal injury claims, but it is much more timely to ask; with a barrister like that strutting his stuff, how can any reasonable person think that Ireland has or had an “Independent Legal Profession”?

Sure, he was independent of the judge, but whose spokesperson was he?

In the provision of services to public authorities there is an exception to the obligation to place the business out to tender; the exception is legal services. This is why Government and State agencies can, without a blush, allocate substantial earning opportunities to the big Dublin firms of solicitors (some more than others) even where the work is not very esoteric or specialised. It is ridiculous to suggest that these firms are “independent”.

Consequently, the legal profession is not independent. Asserting it is does not make it so.