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 Bergin, 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.

January 27, 2012 5:50 pm 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.

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.

Dear Minister,

We write on behalf of our client, Digital Rights Ireland Ltd.

We note that, following the judgement in EMI Ltd and Ors -v- UPC, media reports have suggested that you, or your officials, intend to hold discussions with representatives of both the unsuccessful plaintiffs and Internet Service Providers.

We request, on behalf of our clients, that they be included in these discussions.

As Judge Charlton acknowledged in his EMI -v- UPC judgement, the lack of alternative viewpoints led to him ordering an injunction which had no legal basis in the related, earlier, case of EMI and Ors -v- Eircom.

Our client has, as its purpose, the promotion of defending civil and human rights particularly those arising in the context of modern communication technologies.

Digital Rights Ireland Ltd can call on experience and expertise at a national, European and world level in the areas of privacy and human rights, as well as in telecommunications and information technology. Its locus standi in the area of citizens’ rights to privacy and communications has been acknowledged by the High Court.

Our client believes that any discussions regarding legislative change should involve the widest range of interests being represented, with the aim of ensuring that any legislation drafted is done so with the benefit of all available information.

Yours faithfully,

etc

See the most recent post on the issue HERE

The Court is seeking suggestions as to the form of questions to be submitted to the European Court of Justice. DRI has, in its Statement of Claim, suggested a form of question or questions to be submitted.

Currently, DRI has furnished its expanded draft of the terms of the Reference to be sent to the ECJ. The State, through its Counsel, has agreed to revert to DRI by 17th August 2010 with its responses, if any.

The case will be re-listed before the Court in October.

The Court is seeking suggestions as to the form of questions to be submitted to the European Court of Justice. DRI has, in its Statement of Claim, suggested a form of question or questions to be submitted. Clearly, the High Court is not convinced that the form of question suggested by DRI is exactly right (or is seeking the assent of the State to DRI’s form of question). The hearing next Wednesday will show us which is the case.

DRI’s case is brought in its own name, but it is an action with implications for every citizen of Ireland, whether they know it or not.

For this reason McGarr Solicitors have published DRI’s pleadings on the Web since 2006. This is reasonable; the Respondents are, in effect and name, the State. The issues are public law issues and there can be no prevailing claim to privacy on those issues from these Respondents. It is worth noting that it is not common, to put it at its lowest, to see pleadings of current proceedings published but there is usually an exception to every rule and we have one here.

Between now and next Wednesday we will re-formulate the questions to go to the ECJ. These questions will form part of the Order of the Court making the reference to the ECJ. We currently estimate a two year wait to get a hearing in the ECJ. Delay is inevitable; every Member State of the EU has a right to intervene and be heard in the matter. That implies that every Member State must receive a copy of the Questions and the parties’ submissions.

2. McGarr Solicitors act for Digital Rights Ireland Ltd.

3. DRI brought an application to the High Court to seek a ruling from the ECJ on an EU law issue. The State responded with its motion challenging DRI’s right to bring the proceedings. The Irish Human Rights Commission applied for leave to make submissions in the proceedings. These Motions were heard in the High Court in July 2008.

4. On 5th May 2010 the High Court delivered its (unapproved) judgment. The Court confirmed its agreement to refer the EU law issue in the case to the European Court of Justice. The Court refused the State’s applications seeking denial of locus standi to the Plaintiff and/or seeking security for costs.

5. The matter will be listed before the Court again on 12th May 2010 for submissions on the form of question or questions to be referred to the ECJ.

THE HIGH COURT
2006 No. 3785P

Between

DIGITAL RIGHTS IRELAND LIMITED

Plaintiff

And

THE MINISTER FOR COMMUNICATIONS, MARINE AND NATURAL RESOURCES, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE COMMISSIONER FOR THE GARDA SIOCHANA, IRELAND AND THE ATTORNEY GENERAL

Defendants

UPDATE (25/3/2010)

1. Digital Rights Ireland Ltd. has taken a case against the Irish Government as seen HERE.

2. McGarr Solicitors act for Digital Rights Ireland Ltd.

3. DRI brought an application to the High Court to seek a ruling from the ECJ on an EU law issue. The State responded with its motion challenging DRI’s right to bring the proceedings. The Irish Human Rights Commission applied for leave to make submissions in the proceedings. These Motions were heard in the High Court in July 2008.

4. Judge McKechnie reserved judgment on those issues before the Court.

5. The Plaintiff has asked the Court to refer the issue of the validity of Directive 2006/24/EC to the ECJ. The State had brought this question to the ECJ. (The hearing began in the ECJ the very morning the Motions opened before Judge McKechnie). The Plaintiff endorsed the State case but went further; it says the Directive is not valid, not simply on procedural grounds, but on substantive grounds of breach of human rights and the fundamental law of the EU. This was a very important difference between the State and the Plaintiff on the Directive point.

6. The State asked the Court to deny locus standi to the Plaintiff and, in default of success on that request, asked that the Court order the Plaintiff to furnish security for costs to the State. Judgement on these points had also been reserved.

7. The case was mentioned before Judge McKechnie on 25th March 2010 on which occasion he indicated he would deliver his reserved judgment on 21st April 2010.

Between

DIGITAL RIGHTS IRELAND LIMITED

Plaintiff

And

THE MINISTER FOR COMMUNICATIONS, MARINE AND NATURAL RESOURCES, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE COMMISSIONER FOR THE GARDA SIOCHANA, IRELAND AND THE ATTORNEY GENERAL

Defendants

UPDATE (16/7/2008)

1. Judge McKechnie has reserved judgment on the remaining issues before the Court.

2.The Plaintiff has asked the Court to refer the issue of the validity of Directive 2006/24/EC to the ECJ. The State had brought this question to the ECJ. (The hearing began in the ECJ the very morning the Motions opened before Judge McKechnie). The Plaintiff endorses the State case but goes further; it says the Directive is not valid, not simply on procedural grounds, but on substantive grounds of breach of human rights and the fundamental law of the EU. This is a very important difference between the State and the Plaintiff on the Directive point.

3. The State had asked the Court to deny locus standi to the Plaintiff and, in default of success on that request, asked that the Court order the Plaintiff to furnish security for costs to the State. Judgement on these points has also been reserved.

4. At time of writing, no reply has been received from Hans-Gert Pottering, the President of the EU Parliament to the letter McGarr Solicitors sent to him.

Between

DIGITAL RIGHTS IRELAND LIMITED

Plaintiff

And

THE MINISTER FOR COMMUNICATIONS, MARINE AND NATURAL RESOURCES, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE COMMISSIONER FOR THE GARDA SIOCHANA, IRELAND AND THE ATTORNEY GENERAL

Defendants

UPDATE (27/6/2008)

Digital Rights Ireland Ltd. has taken a case against the Irish Government as seen HERE.

DRI has brought an application to the High Court to seek a ruling from the ECJ on an EU law issue. The state has responded with its motion challenging DRI’s right to bring the proceedings. The Irish Human Rights Commission has applied for leave to make submissions in the proceedings. These Motions will (it is believed) be heard in the High Court on 1st July 2008. See the letter to Dr. Hans-Gert Pöttering for the context for this.

Our Ref;EMcG Your Ref; 24th June 2008

Dr. Hans-Gert Pöttering
President,
European Parliament,
Paul Henri Spaak building
Brussels

Dear President,

1. I am the lawyer for Digital Rights Ireland Ltd. (“DRI�?). DRI is a corporate body established to protect and vindicate the civil and human rights of mobile phone users in Ireland. DRI has issued proceedings in the Irish High Court to challenge the validity of aspects of Ireland’s data retention legislation. (“The DRI proceedings�?).

2. I write to you, as a matter of urgency, because an aspect of that legislation is the subject matter of proceedings between, inter alia, Ireland and the European Parliament in the European Court of Justice. (C-301/06: Ireland v Council and Parliament “The ECJ proceedings�?) Those proceedings are now listed for hearing on 1st July 2008.

3. As you probably know, the Irish High Court is empowered to rule on the validity of European Union law, where the matter is acte clair. DRI is seeking, among other things, a ruling or rulings from the High Court on the validity of Directive 2006/24/EC.

4. Because, in the opinion of DRI, that matter is not acte clair, DRI has requested a reference by the High Court to the European Court of Justice on the validity of Directive 2006/24/EC.

5. DRI understands that the validity of Directive 2006/24/EC is the issue in the ECJ proceedings.

6. However, DRI perceives that DRI and Ireland do not agree as to why Directive 2006/24/EC is invalid. Ireland, it is understood, believes it is invalid because it was adopted at a meeting of the Council of Ministers following a vote against it by Ireland. Ireland is of the view (as is DRI) that Ireland’s vote was a veto vote. Ireland believes this because the subject matter for decision in the Council of Ministers was a “Third Pillar�? issue. Unanimity is required for such issues; there was none.

7. DRI believes that the grounds of invalidity of Directive 2006/24/EC are wider than that. Ireland does not agree, it appears, (given certain actions and expressions of view of Ireland).

8. DRI believes that the basis for a determination of the invalidity of Directive 2006/24/EC, by the European Court of Justice, is a very important matter. DRI wishes to ensure that the European Court of Justice has the benefit of a full examination of all the reasons why Directive 2006/24/EC is invalid.

9. DRI will shortly obtain a hearing by the High Court of its application for a reference to the ECJ. It is opposed by Ireland in its pleadings. Ireland has also objected to the High Court hearing submissions from the Irish Human Rights Commission on the issues that DRI has brought to the Court.

10. What is now clear is that, failing intervention, the hearing of the ECJ proceedings on 1st July 2008 will precede the DRI proceedings in the High Court in Dublin. That means that the ECJ will be deprived of the full examination of the reasons why Directive 2006/24/EC is invalid.

11. If DRI is successful in Dublin it will be anxious to ensure its proceedings, under the High Court reference, are heard before or at the same time as the ECJ proceedings. The European Parliament is a respondent in the ECJ proceedings. It is open to the EP to apply to the ECJ for an adjournment of those proceedings pending the outcome of the DRI proceedings in Dublin.

12. I write to you to ask you to procure the making of that application to the ECJ.

13. The benefits will be substantial, legally and politically. The perception of the European Union as a legal institution will be enhanced. The opportunity for the ECJ to rule on what is a human rights issue will be secured. The anxiety of the European Parliament to protect human rights will be demonstrated.

14. DRI’s objectives are supported by groups across Europe including: Privacy International, the European Foundation for a Free Information Infrastructure, the Czech civil rights group Iuridicum Remedium, Digital Rights (Denmark), the Belgian Liga voor de Mensenrechten (“League for Human Rights�?), Electronic Frontier Finland, the UK Open Rights Group, the Italian group, ALCEI (“Electronic Frontiers Italy�?), the French IRIS, the Internet Society – Bulgaria, German groups netzwerk Neue Medien (“New Media network�?) and FITUG (Förderverein Informationstechnik und Gesellschaft e.V.), and the Austrian groups VIBE!AT (“Austrian Association for Internet Users�?) and Quintessenz.

15. I am ready to furnish any further details or information you may wish to have. The Chairman of DRI and I will readily travel to meet you if you require.

16. For obvious reasons the matter is urgent and I await hearing from you by return.

Yours Faithfully,

____________________
Edward McGarr
McGarr Solicitors