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Section 3 of the Hotel Proprietors Act 1963  stipulates:

“The proprietor of a hotel is under a duty to receive at the hotel as guests all persons who, whether or not under special contract, present themselves and require sleeping accommodation, food or drink and to provide them therewith, unless he has reasonable grounds of refusal.”

Section 4 goes on to provide:

“Where a person is received as a guest at a hotel, whether or not under special contract, the proprietor of the hotel is under a duty to take reasonable care of the person of the guest and to ensure that, for the purpose of personal use by the guest, the premises are as safe as reasonable care and skill can make them.“

This probably imposes a higher standard of care than the Occupiers Liability Act 1995.

Section 5 provides:

“Where sleeping accommodation is engaged for a person as a guest at a hotel, whether or not under special contract, the proprietor is under a duty to receive any property brought to the hotel by or on behalf of that person for which the proprietor has suitable accommodation”

Section 6 provides:

 “Where sleeping accommodation is engaged for a person as a guest at a hotel, whether or not under special contract, the proprietor is liable for any damage to, or loss or destruction of, property received by him from that person or from some other person on his behalf.”

The Act provides that a motor vehicle is received when parked in accommodation provided for that purpose by the proprietor and the hotel staff is notified of that fact.

By implication other property is received without notice to the staff. (There are special rules for goods deposited with the hotel itself).

The Act limits liability for loss of property (except motor vehicles) to £100 but only if a notice pursuant to the First Schedule is prominently displayed at reception. The notice is in Irish and English and reads:

“NOTICE

On Sunday night, we published our post 2012: The year Irish newspapers tried to destroy the web on the efforts of the Irish newspaper industry to assert property rights over links.

The post has provoked a good deal of comment. For convenience, we have collected up a few of the responses.

Hugh Linehan, the Editor of IrishTimes.com:

@jobrodie I should acknowledge that it’s all factually correct as far as I know

— Hugh Linehan (@hlinehan) December 31, 2012

Prof Jay Rosen, Professor of Journalism, NY University:

When I talk about “legacy” media it’s not some buzzword. It has a referent. Behavior like this: bit.ly/UiBc2I via @tkeala — Jay Rosen(@jayrosen_nyu) January 1, 2013

Prof George Brock, Head of Journalism, City University London:

Breathtaking MT @jayrosen_nyu: When I talk about “legacy” media it’s not some buzzword. Behavior like this: bit.ly/UiBc2I via @tkeala — George Brock (@georgeprof) January 1, 2013

Bora Zivkovic, Blogs Editor at Scientific American. Visiting Scholar at NYU school of journalism:

I hate to use the word “idiots”, but sometimes that’s the best fit: The year Irish newspapers tried to destroy the web mcgarrsolicitors.ie/2012/12/30/201…

— Bora Zivkovic (@BoraZ) January 2, 2013

Newspapers demand to be paid if you link to them by Rob Beschizza, BoingBoing.net

To be completely clear about it, this isn’t about fair use, fair dealing, excerpts, headlines or anything like that. It’s about links
…
It’s as if the newspaper business was still run by clueless middle-aged white drunks, or something.

Prof Jeff Jarvis, Associate Professor City University of New York, Director of the Tow-Knight Center for Entrepreneurial Journalism

When Irish newspapers tried to kill the link (thus the web): mcgarrsolicitors.ie/2012/12/30/201…

— Jeff Jarvis (@jeffjarvis) December 31, 2012

Dermot Casey, Tinstring

Former CTO of Storyful.com:

It’s wrong, pure and simple. No if, no but and no maybe about it. It’d be interesting if they went after Google. Still wrong but interesting. And yet it’s not Google they went after, it’s Women’s Aid. What does that say about the mentality and morality of the National Newspapers of Ireland and their agents?

Charles Arthur, The Guardian

Your eyes will pop at the amounts.

I would link to any coverage the matter had received in Irish Newspapers but there still has been none.

Voted in Favour of ACTA

None

Voted Against ACTA

Emer Costello, Paul Murphy, Liam Alyward, Nessa Childers, Pat the Cope Gallagher, Marian Harkin, Phil Prendergast

Abstained on ACTA

Gay Mitchell, Mairead McGuinness, Sean Kelly, Jim Higgins

No Vote Recorded on ACTA

Brian Crowley,

Source, Pages 19-20.

Update: This post originally showed Phil Prendergast as not having a vote recorded. This was my error and I have corrected it above. Sorry about that Ms Prendergast!

Canard: An unfounded or false, deliberately misleading story; a duck.

“I will introduce this imminently, by the end of January.”
-Sean Sherlock, Sunday Business Post, 23rd January 2012

First, I’d to clarify that Minister of State, Sean Sherlock TD, has
emphasised that he has not put forward any proposals to enact a “Stop
Online Piracy” type Law.

- He intends to bring in a vaugely worded law permitting copyright holders to seek injunctions without any explicit safeguards for fundamental rights, including injunctions to block access to websites for Irish users. He may not have called it SOPA Ireland, but let’s not listen to whinges about the characterisation.

Second, I’d like to emphasise that the need to legislate arises from a finding of the High Court in October 2010 that Ireland was not in
compliance with its EU obligations under Copyright Directive 2001/29/EC as the High Court found itself unable, under existing primary legislation, to
grant an injunction against an intermediary.

-Actually, the urgent impulse to legislate comes from the case of EMI Records [Ireland] Ltd and Ors -v- Ireland and Anor which was filed on the 10th Jan this year.

As you will appreciate, failing to be in compliance with our obligations under EU law is a very
serious matter.

- Well, it is the European Commission’s job to police breaches of EU law. They haven’t even said they think there is one here. So, they don’t seem to think it’s that serious. Or, if you prefer, they don’t think we’re not in compliance. Which also wouldn’t be that serious.

Third, I believe it is important to emphasise that no policy change is proposed in the Statutory Instrument. It had been the intention of the Copyright and Related Rights Act, 2000 to provide civil remedies such as injunctions and it was assumed that the Act did, in fact, provide for such remedies until the High Court found otherwise in the case of EMI Ireland & others v. UPC in October 2010. The wording of the proposed Statutory Instrument has been framed in a way which gives effect to the wording of the EU Copyright Directive rather than extending its scope.

-Changing a law is far more significant than changing a policy. It was assumed the original Act did something. Then a court found it didn’t. The SI is now being assumed to do something. A pity that all this assuming can’t be replaced with an explicit statement of what the law should do.

The intended purpose of the proposed Statutory Instrument is not to enact new EU legislation but, rather to restate the position that was though to exist in the Copyright legislation prior to the EMI Ireland case.

-Well, sure. But then, that was the intended purpose of the original act. Look where intending things got us there.

Last July Minister Sherlock held a public consultation in relation to the wording of a proposed Statutory Instrument amending Section 40 of the Copyright and Related Rights Act, 2000. More than 50 submissions were received from interested parties, providing an excellent overview of all the issues and concerned involved. Minister Sherlock has engaged extensively with interested parties in respect of their views and concerns.

-Odd. Here’s a letter sent from our office on 20th October 2010. We never got an invite.

At the time, the then Minister was only talking about meeting “both sides”- the record companies and the ISPs.
Sean Sherlock took the same “both sides” line on Drivetime with Michele Neylon.
Mind you, after 80,000 people pointed out they were also concerned with his intentions, he arrived at a new formulation “I reiterate this is about balancing the rights of Internet users, Internet businesses and the copyright holder”

The legislative measure is expected to be introduced shortly.

- I think this is where we came in.

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.