Minister for State Sean Sherlock is in an unenviable position.

On the 10th of Jan 2012 his government was sued by EMI Ireland for their claimed losses arising from his alleged failure to provide for injunctive relief.

On the 17th January the Chief State Solicitor entered an appearance to that claim. That means the State then had 21 days to put in a defence.

By my, admittedly shaky calculations, this means the State has until the 5th February to enter a defence. They would like, as part of this defence, to say that they have already passed a law bringing in the change EMI have demanded.

This is why the Minister has correctly conceded a debate, while asserting he will still sign an SI at the end. He has a gun to his head.

He simply doesn’t have time to bring forward the primary legislation this matter so urgently requires before the deadline imposed by EMI.

It is difficult to have a full and calm discussion with a hostage.

For this reason, we suggested that a hybrid approach to the knotty problem might be the best outcome from this week’s extraordinary events.

Independent TDs Catherine Murphy and Stephen Donnelly delivered the text of an alternative Statutory Instrument to the Minister today. The aim was to meet the immediate needs of the Government in their requirement to have a law implemented, which ensuring that that law reflected the fundamental rights of businesses and internet users in its implementation. Furthermore, this alternative text provided for what is known as a ‘sunset clause’.

This clause would see the alternative Order effectively self destruct in 2 years time. This would provide plenty of time for the government to address these absolutely critical issues with a full and open debate followed by proper primary legislation, subject to full scrutiny by the Oireachtas.

Nothing the Minister sought in his draft SI has been removed. The additional safeguards of fundamental rights are those which he has already committed himself to, arising from European Court case law. And the implementation the State believes is prudent before the 5th February deadline will still have been achieved.

We look forward to the Minister’s response to this constructive suggestion in the debate, starting now.

The text of our proposed alternative SI, drafted by TJ McIntyre
****

DRAFT OF

STATUTORY INSTRUMENTS

S. I. No. ___ of 2012

____________

EUROPEAN UNION (COPYRIGHT AND RELATED RIGHTS) REGULATIONS 2012

To be made by the Minister for Jobs, Enterprise and Innovation.

I, _____________, 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, hereby make the following regulations:

1.​These Regulations may be cited as the European Union (Copyright and Related Rights) Regulations 2012.

2.​The Copyright and Related Rights Act 2000 (No. 28 of 2000) is amended -

(a)​ in section 40, by inserting the following subsection after subsection (5):
“(5A)​(a)​The owner of the copyright in a work may, in respect of that work, apply to the High Court for an injunction against an intermediary to whom paragraph 3 of Article 8 of 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 applies.

(b)​In considering an application for an injunction under this subsection, the court shall have due regard to the rights of any person likely to be affected by virtue of the grant of any such injunction (including the freedom to conduct business, the right to protection of personal data and the right to receive or impart information) and the court shall give such directions (including a direction requiring that persons likely to be affected be notified of the application) as the court considers appropriate in all of the circumstances.

(c)​Where the court considers that the right to protection of personal data is likely to be affected by virtue of the grant of any such injunction then the court shall direct that the Data Protection Commissioner be notified of the application.

(d)​Unless the court is satisfied that not granting an injunction under this subsection would give rise to an injustice, the court shall not grant such an injunction where a remedy in damages would be available to the applicant.

(e)​An injunction under this subsection shall not be granted unless the court is satisfied that the injunction will distinguish adequately between infringing material and lawful content so that it will not lead to the blocking of lawful communications.

(f)​The costs of an intermediary against whom an injunction is sought under this subsection shall be borne by the applicant irrespective of the outcome of such action.

(g)​Where an intermediary complies with an injunction made against it under this section the applicant shall pay to the intermediary all expenses necessarily and properly incurred by it in relation to such compliance.”

(b)​in section 205, by inserting the following subsection after subsection (9):
“(9A)​(a)​The rightsowner of any right conferred by Parts III and IV may, in respect of that right, apply to the High Court for an injunction against an intermediary to whom paragraph 3 of Article 8 of 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 applies.

(b)​In considering an application for an injunction under this subsection, the court shall have due regard to the rights of any person likely to be affected by virtue of the grant of any such injunction (including the freedom to conduct business, the right to protection of personal data and the right to receive or impart information) and the court shall give such directions (including a direction requiring that persons likely to be affected be notified of the application) as the court considers appropriate in all of the circumstances.

(c)​Where the court considers that the right to protection of personal data is likely to be affected by virtue of the grant of any such injunction then the court shall direct that the Data Protection Commissioner be notified of the application.

(d)​Unless the court is satisfied that not granting an injunction under this subsection would give rise to an injustice, the court shall not grant such an injunction where a remedy in damages would be available to the applicant.

(e)​An injunction under this subsection shall not be granted unless the court is satisfied that the injunction will distinguish adequately between infringing material and lawful content so that it will not lead to the blocking of lawful communications.

(f)​The costs of an intermediary against whom an injunction is sought under this subsection shall be borne by the applicant irrespective of the outcome of such action.

(g)​Where an intermediary complies with an injunction made against it under this section the applicant shall pay to the intermediary all expenses necessarily and properly incurred by it in relation to such compliance.”

3.​These Regulations shall cease to have effect on 31 January 2014
GIVEN under my Official Seal,
____________ 2012.

_________________________
Minister for Jobs, Enterprise and Innovation.
O.J. No. L. 167, 22.6.2001, p.10.
O.J. No. L. 167, 22.6.2001, p.10.
O.J. No. L. 167, 22.6.2001, p.10.

PAGE

PAGE 3

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.

This problem has now been resolved.

Thanks for your patience.

Due to a breakdown in our email providers’ servers, our office has not received any emails today (Mon 7th Nov).
Our providers assure us that no email has been lost and have estimated service will resume at 9am on Tuesday 8th Nov.

Thank you
.

FINAL UPDATE, Mon 1st November 2011

All phones, fax and email communication have now been restored to our office. We are glad to be back.

Update Fri 11.40 We no longer have any Internet connection to our office. In addition Eircom now says that it estimates it will be Tuesday or Wednesday of next week before our line faults are repaired.

We regret the difficulties in contacting us and suggest that ordinary posted letters are the most reliable form of communication.

We will continue to update this post with any changes to the status of our communications if we get them.

Update Thurs 2.22 We are now intermittently receiving incoming calls. These are of very low audio quality. Our fax line is still down.

The most reliable method of contacting our office remains by email info@mcgarrsolicitors.ie

Update Thurs 11.38amEircom have told us they expect the fault to be repaired 2-4 days from being reported. We’re now in Day 3. Hopefully we won’t go all the way to 4. However, as of now, the problems below remain.

Update Wed 10.40am They say things get worse before they get better but we find it hard to see the fact that our fax line is now not working as a positive development. Email info@mcgarrsolicitors.ie now the best method of contact

6.44pm Update: Eircom are running line tests. They say they’ll let us know what the results of those tests are when they get them.

Our fax line is also out of service.

Our email contacts are still running. Please contact us at info@mcgarrsolicitors.ie

We will let you know when things are back to normal.
Many thanks.

Legal proceedings claiming compensation for personal injury (including injuries due to medical negligence) must commence within two years of the commencement of the running of time against the injured person.

When does time begin running?

It depends on the facts of the case.

The Irish Medical Council has published Guidelines to doctors that they may be convicted of medical malpractice if they are not open to the patient or the family of the patient in the event of error.

This is good. It is good for two reasons; firstly, the Council’s ruling (although not entirely selfless) will allow injured persons to access legal advice promptly after an error (and retrieve evidence before it is lost).

Secondly, the situation referred to in this earlier post of McGarr Solicitors can be avoided. The situation was one where, due to the deceit of a doctor, the Statute of Limitations did not begin to run against a patient until she could find out about the injury and the full, true, circumstances in which it was inflicted.

The editorial of the Irish Times of 1st August 2009 claims the public has “a right to know”. If there is such a right, it is so vague as to be difficult to prove it exists.

Ireland has Freedom of Information legislation that addresses the right (circumscribed) of persons to gain access to documentation under the control of some public bodies. Other legislation addresses the right (equally circumscribed) of persons to gain access to information under the control of most public and private bodies.

These rights are available, generally speaking, to the extent that the officials charged with securing them are effective and the legislation permits.

On these fronts the government has taken positive steps to weaken the legislation and the effectiveness of the officials.

This latter statement is, or should be, controversial. If it is true, it is a scandal. If it is not true its publication is a good occasion to show that, and to promote the supposed “Right to Know” claimed by the Irish Times.

It is of course, a true statement.

It is the job of the members of Dail Eireann to suppress those elements of government and public administration guilty of these positive steps.

Those members will not or cannot do this.

That is the real scandal.

The reference to a “Right to Know” is meaningless unless the public perceives the context in which such a right could, or might, exist. That context is one where Freedom of Information legislation is comprehensive and integrated; where even the suspicion of a desire to limit its effect is sufficient to end political or administrative careers and where it would be inconceivable that a salaried member of the administration would be acceptable as a watchdog of the public’s rights.

The readers of this blog are self-selecting and would be very unlikely to mispronounce “crisps”, as in; “A packet of cheese and onion crips, please”.

However, they might say “…between you and I,…” and they would be wrong.

I am conscious of the need for sub-editors, but nowadays we have to be our own sub-editors. This post is intended to help with one particular issue, the use of “I” and “me”.

When you are the subject of a statement or sentence, you use “I”; when you are the object of a statement or sentence, you use “me”.

Find the verb and decide; is it acting on “you” or are “you” the person acting?

Here are some examples. The verb is “threaten”; who is doing the threatening and who is being threatened?:

“Brian Cowen threatened me” Correct. I am the object.

“Brian Cowen threatened I” . Incorrect. I am the object.

“I threatened Brian Cowen” . Correct. I am the subject.

“Me threatened Brian Cowen”. Incorrect. I am the subject.

“My wife and I threatened Brian Cowen”. Correct. I (with my wife) am the compound subject.

“My wife and me threatened Brian Cowen”. Incorrect. I (with my wife) am the compound subject.

“Brian Cowen threatened my wife and me..” Correct. I (with my wife) am the compound object.

“Brian Cowen threatened my wife and I..” Incorrect. I (with my wife) am the compound object.

Get the first four examples right and the compound examples will fall more readily into place.

Where you are part of a compound subject or object, it is courteous to place the reference to “you” last; “Bill and I…” not “I and Bill…”; “My wife and I…” not “I and my wife…”; or “…Bill and me” not “…me and Bill”.

“Myself” is a reflexive pronoun. A reflexive pronoun is used when the subject and the object of the verb are the same.

“I promised myself”

It can also be used for emphasis; “I don’t see it, myself”. An interesting use for this purpose is “Myself I shall adore” from Handel’s work “Semele“.

However, “myself” is not a substitute for “I” or “me”; you ought not to say “Myself and my dog…” or My dog and myself…”

The UK Law Society has had a long history. It is now at a new low.

Having been cavalier about its “regulatory” function, it was forced to cede that responsibility to the Legal Services Board. The Board is one of those independent bodies to which there is always appended the word “independent” when it is mentioned by its spokespersons and mentors.

Verbal tics like that are the speech equivalent of body language signals.

Now the Law Society’s real owners are going to abandon it. I mean the big City firms. They do not want to be subject to a messy regime of regulation; they do not even want to be in charge of it.

They want their own system of regulation (which is not to say they never had that before).

In the UK the possibility of partnerships between solicitors and barristers is looming. The UK Bar is what is known as a sophisticated user of legal services. It knows full well the real system by which the professions are operated; it wants no “regulation” from the Law Society or its members, over members of the Bar.

Now the Law Society has “commissioned” a review of things by Lord Hunt of Wirral. He happens to be a solicitor and a former member of the Cabinets of Mrs. Thatcher and John Major.

He has, it seems, announced his brief thus:

Should the system of regulation be the same for a High Street solicitor as for a medium-size law firm? Should it be the same for a one-person practice as for a global law firm?”

Peculiarly, for a solicitor, he does not seem to have noticed the question has been asked and answered:

Yes”

Why should a partner in a global law firm who throws ashtrays at his staff not be brought to book like anyone else?

Why should he not be brought to account if he steals the money of a client?

What Lord Hunt probably means is that the Legal Services Board has not got the skill, experience or facilities to delve into the accounts of a big firm.

He probably already knows that, before all those features, there must come the will to act. That will has always been absent.

In Wicklow County Council v. Fenton & Ors [2002] IEHC 102 (31 July 2002) the High Court likened the owner of an illegal dump to a receiver of stolen property. Without a receiver there can be no profit in theft; without an illegal dump there can be no illegal dumping. The court accepted the principle advanced by the applicant Council that it did not have to prove negligence; that the state of mind of the Respondents was not required to be proved. The court endorsed the principle of “the polluter pays�?, a principle found in Council Recommendation 75/436Euratom and specifically incorporated in Section 5 of the Waste Management Act 1996.

“the polluter pays principle” means the principle set out in Council Recommendation 75/436/Euratom, ECSC, EEC of 3 March, 1975 1 regarding cost allocation and action by public authorities on environmental matters;

Under Section 26 of the Waste Management Act 1996 the Environmental Protection Agency is obliged to incorporate the “polluter pays�? principle into its national hazardous waste management plan.

The court found that the Respondents had been negligent on the facts and made orders for the remediation of the lands on which the illegal dump was found.

Consequently, liability under the Waste Management Act 1996 can be established simply by showing that there has been dumping on lands and that there is no authority for such dumping. The liability attaches to the occupier of the land; there is no need to show that the dumping took place during the period of occupation by that occupier.

According to the Return of the Owners of Land of 1872, nobody in Ireland of my surname was, in 1872, the owner of one acre of land or more.

This is not exceptional. Most of the population of Ireland was in that position. In 1872, 98.7% of the population of Ireland owned no land at all. By 2006, this figure had fallen to 18%. (“Land�?, in 2006, includes a residence).

In 1872 registration of ownership of land in Ireland was effected in the Registry of Deeds. This Registry commenced operation in 1707 and is currently located in part of the Kings Inns in Henrietta St., Dublin 7. The deed is brought to the Registry with a précis called a memorial. The date and time of registration are stamped on the deed, which is returned to the registrant, and the memorial is retained with the details of registration being entered onto the register. There had been an earlier system of registration of title but it was not until the Local Registration of Title (Ireland) Act 1891 that the modern system appeared, intended to replace the registration of deeds system as a record of ownership of land.

Even yet it has not done that.

It is not expressed anywhere, but the reason for that is that it is intended to be so. After all, it took only four years to record the ownership of all the land in England, Ireland, Scotland and Wales in 1872. Neither the Registry of Deeds nor the Land Registry can now show what the Record of 1872 revealed. (The modern Act is the Registration of Title Act 1964).

If Greta Garbo were alive today and still of a mind to be alone she would take herself to County Leitrim. There, there are 15.2 acres per person, compared to .02 acres per person in Dublin.

It was not always thus.

In 1841 County Leitrim had 2.5 acres per person and a population of 155,297. The current population shows a fall of 83%.