The office will be closed from 3.30pm today.
We will reopen on the 6th January 2014.
Please feel free to email us, as all emails will be priority in the new year.
In the meantime, have a great Christmas.
Class Actions
Britain and Ireland share many things, not least the weather.
We share an approach to legal proceedings so, possibly, Ireland will follow the UK into a new form of legal proceedings, known as “collective action mechanisms”, “representative court actions“ or “class actions”.
The UK experimented with consumer “opt-in” representative court action. That failed; it was used once.
Now, the UK is proposing to introduce “opt-out” representative court actions for consumers. If it works for consumers its attractions may spread it elsewhere.
See the 7th Schedule of the UK draft Consumer Rights bill for details.
DO YOU WANT TO KNOW MORE?
The “more” is not a fantasy parliamentary debate. It’s this; the proposal is an effort to move from the parliament. The draft Consumer Rights bill is trying to give an effective remedy to the mass of people. It is very limited in its objectives but it implies that people can act collectively other than through the political system. This also has an implication; all law is value-laden.
ALL LAW IS VALUE-LADEN
That all law is value-laden is true but is obscured by modern references to “legal services” and an emphasis on the contractual elements in the relationship between lawyers and their clients.
Most personal clients of lawyers do not think of the relationship as being contractual, just as that element rarely crosses their mind when talking to their doctor. They think, in litigation, of their lawyer as a “champion” who will fight for them. Even in the buying of a house they think their lawyer will make every effort to ensure that the title to the house is good, pushing the seller to make it good if it is not.
Clients think that this aspect of the relationship is the most important.
GOVERNMENTS HIRE “THEIR” LAWYER
Not surprisingly, politicians think the same. When they get into government they do not wish to be compelled to hire lawyers on the basis of “competitiveness”. They do not want to hire the “best” lawyer or the “cheapest” lawyer. They want “their” lawyer. To do this they have excluded the purchase of “legal services” from the obligation to spend public money and promote business on competition grounds. (They put the services out to tender sometimes but they are not open to challenge if they then select the lawyer that they wanted in the first place).
In circumstances like this, “legal services” is a misnomer. This is representation. This is the advancement of the interests of the client in a way the client would do, if the client personally could.
This is valid if it is done properly. It does not mean following the client’s instructions exactly or acting in the client’s interests to the exclusion of anything else. To do that is, paradoxically, not in the client’s interests.
In this field of legal representation, the word “academic” hardly fits comfortably. Sometimes that term is pejorative; it refers to university teachers who aim to be analytical and thorough but not popular.
Useful and popular lawyers are dubious. Indeed, these are not measures of quality at all. The “academic” feels vindicated if they are not thought of as “useful”. They look to their “peers” for validation.
This is a rejection of the idea that law is value-laden. When they do this they ignore what ordinary people and politicians think the purpose of law is.
Looking East
Trenitalia is Italy’s national train system. Being national, it is open to political interference in the form of over-manning. Other things being equal, this is good for passengers and employees.
Ireland can have nothing to say about this situation. Irish citizens, likewise, must confine their reflections on Italian train travel to their memoirs.
The USA also has a bloated and inflated industry; its prison system. There are 758 prisoners per 100,000 of population there. This is not the stuff for memoirs; this is unjustifiable and properly open to international criticism. (Black people are more likely to be in a US prison than white people).
However, excepting action at the level of the United Nations, Ireland has no opportunity to address such a situation and why should it?
That’s not the case in the European Union.
Under the European Arrest Warrant system, each member state of the EU is obliged to extradite “wanted” persons to the other member states on request.
The possibilities of Ireland avoiding this obligation are very slim; approximately 97%-98% of persons arrested are extradited to the requesting country.
The available statistics on crime etc. in the EU show some interesting (and odd) facts.
Poland and eastern Europe generally likes to lock people up. Estonia (302 prisoners per 100 000 inhabitants), Latvia (293), Lithuania (232), Poland (228) and the Czech Republic (185). Same goes for the UK (146 in England & Wales), (compared to Germany or France, say).
Why should Ireland help to promote and feed the Polish prison industry? How many Polish deaf-signer-nephews-of-politicians are working in that system?
Oddity; did it really happen that Italy had 324,339 police persons in 2006 and only 106,728 in 2007? A case for Inspector Montalbano?
ECJ Advocate General’s Opinion recommends Data Retention directive be struck down
The Advocate General of the European Court of Justice has delivered his opinion in the Digital Rights Ireland challenge to the Data Retention Directive.
He says:
I propose that the Court should answer the questions referred by the High Court in Case C 293/12 and the Verfassungsgerichtshof in Case C 594/12 as follows:
(1) Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC is as a whole incompatible with Article 52(1) of the Charter of Fundamental Rights of the European Union, since the limitations on the exercise of fundamental rights which that directive contains because of the obligation to retain data which it imposes are not accompanied by the necessary principles for governing the guarantees needed to regulate access to the data and their use.
(2) Article 6 of Directive 2006/24 is incompatible with Articles 7 and 52(1) of the Charter of Fundamental Rights of the European Union in that it requires Member States to ensure that the data specified in Article 5 of that directive are retained for a period whose upper limit is set at two years.
Owing to the nature of the organisation and the serious implications for every person in the country of the mass surveillance implied by Europe’s Data Retention regime, Digital Rights Ireland was granted a special status by the Irish High Court. It was permitted to take an ‘actio popularis’, meaning it was recognised as having standing to bring its challenge on behalf of all the citizens of Ireland.
We act for Digital Rights Ireland.
This case started in Ireland’s High Court in 2006 and was referred to the ECJ in 2010 by Judge McKechnie to allow the European court to rule on a number of questions relating to the interpretation of European law.
The case was joined with a case referred from Austria ‘Seitlinger and Ors’, which was also challenging the Data Retention directive.
Both cases were heard together in July of 2013 (transcript of our submissions to the court)
Today’s opinion is not the judgement of the Court, but represents a very persuasive indication of the court’s possible final judgment.
If the ECJ follows the Advocate General’s example, it will mean that the European Data Retention Directive will have been struck down for all citizens of the European Union and that local laws are open to challenge in local courts.
Regardless of the final judgement, Digital Rights Ireland’s case will return to the Irish High Court to continue, once the decision on the European Law dimension of the matter has been settled.
UPDATE:
The Advocate General’s full opinion is now available.
Opinion of AG in Digital Rights Ireland data retention challenge by TJ McIntyre
The European Court of Justice has also issued a press release on this opinion.
The Actio Popularis, Aarhus Convention and class actions in Ireland
Ireland currently has a limited form of class action. It is the “actio popularis”.
It is not like the US form of class action; it is not of direct benefit to individual members of the public. They get the benefit when they are in the class that benefits from the judgment. They do not simply lodge their claim for compensation, say.
The Irish courts have accepted “actio popularis” claims in only one such proceedings; Digital Rights Ireland Ltd. v The Minister For Communication, Marine And Natural Resources and Ors.
(McGarr Solicitors acted for Digital Rights Ireland Ltd. and the proceedings are still in being and under way. More on this later this month.)
In India, the actio popularis has been used to secure;
“…the right to health, livelihood, free and compulsory primary education, unpolluted environment, shelter, clean drinking water, privacy, legal aid, speedy trial, and several rights of under-trials, convicts and prisoners.”
Currently, in Ireland, the action most like an actio popularis is the right, under the Aarhus Convention and EU law to have access to the courts at reasonable cost to protect the environment.
Irish governments have resisted this right fiercely, but, unlike the actio popularis, it is available readily wherever the threat to the environment is of the kind protected by EU law.
Sean Sherlock makes a welcome statement of support for EU copyright reform
The above interview, which Minister Sean Sherlock gave to the Journal.ie’s Hugh O’Connell this week included a significant new statement of support for proposals to reform copyright, not merely nationally, but at an EU level.
“We are bound by [EU] copyright law…
it needs to advance,
it needs to be modernised.”
Ireland could make an important contribution to this international debate, which has been led by Dutch efforts to introduce a more flexible copyright regime through the passage of a new EU Copyright Directive to update the 2001 regime.
Furthermore, this statement bodes well for the Irish Government’s response to the Copyright Review Committee’s report, which is being launched tomorrow.
The Copright Review report recommends that Ireland introduces a (limited) form of a ‘fair use’ exemption for intellectual property.
exceptions should be regarded as examples of fair use so as to allow workable analogies to be developed, and sets out the criteria for the court to take into account in determining whether or not a matter amounts to fair use.
–Copyright Review Committee report, P177
This thinking is in line with a proposal from Dutch legal expert Bernt Hugenholtz, Professor of Intellectual Property Law and Director of the Institute for Information Law of the University of Amsterdam. Professor Hugenholtz, in his paper “The Dutch case for flexibility” proposed exactly this form of member state action as a stopgap to wider EU-level reforms.
For example, a rather loosely drafted Article 5(3)(a) of the Directive seems to allow member states to exempt a much wider range of educational and scientific uses than many national laws presently permit. The quotation right set forth in Article 5(3)(d) might arguably leave room for an exception permitting the fair use of copyright protected material for the purposes of search engines and other reference tools. And Article 5(3)(i), which allows the “incidental inclusion of a work or other subject-matter in other material” apparently leaves room for a whole range of unspecified “incidental” uses.
In the second place, it is often overlooked that the Directive does not harmonise the entire spectrum of economic rights that copyright holders normally enjoy. The Directive only harmonises the rights of reproduction, communication to the public, and distribution. The Directive does not deal with a right of adaptation that allows rights holders to control transformative uses of works, such as film versions, translations, and other “derivative works.” By implication, the Directive’s list of permitted limitations and exceptions does not concern this right. Member states remain free to provide for limitations and exceptions to the right of adaptation at their own discretion, subject only to the “three-step test.”
The Minister’s statement on this can only bode well for the Government’s response to the rest of the Copyright Review Committee’s report.
In Praise of Cearta.ie
Had we but world enough and time…
To peer-review our works and rhyme
‘Twould serve us well in private state
But publick matters are not so fine
To let us leave the readers wait
Who pay us time for their estate
And not the purchase of our pine
– With apologies to Andrew Marvell
The news that the Cearta.ie blog, written and maintained by Dr. Eoin O’Dell of Trinity College Dublin has gone offline was received in this office with very considerable regret.
Dr. O’Dell has, since starting his website, provided the public with invaluable legal information and explanation. His posts were written in an accessible manner but he never compromised his academic rigour, providing spectacular depth and breadth of supporting links and further reading.
Dr. O’Dell has been, through Cearta.ie, one of Ireland’s foremost public educators.
“[A blogger’s] activities fall squarely within the “education of public opinion” envisaged by Article 40.6.1. A person who blogs on an internet site can just as readily constitute an “organ of public opinion” as those which were more familiar in 1937 and which are mentioned (but only as examples) in Article 40.6.1, namely, the radio, the press and the cinema.”
– Judge Gerard Hogan
Irish High Court
Lewis Carroll’s Freedom of Information Bill 2013
Maybe it was the lateness of the hour or maybe it was just the effect of a couple of days of unexpected trouble but minister Brendan Howlin today told us why he wants to charge €15.00 in respect of FOI requests.
The Minister was on his second day in Committee. The session had started with him announcing that he wanted to withdraw his controversial amendment to Section 12, multiplying Ireland’s FOI Fees.
He wasn’t abandoning his plans, he had just lost confidence overnight in his amendment’s wording. He confirmed his plan to bring back the fee hike later.
Despite this temporary retreat, he still faced questions. Stephen Donnelly asked him how much money the Government expected it was going to cost to collect those fees- and whether the Government had estimated how much money they would raise.
Like the Hatter flanked by the Dormouse and the March Hare, the minister sat between his civil servants, who murmured words in his ear.
The Minister explained that his department couldn’t actually manage to make any estimate.
Donnelly pointed out that, without estimates, the Minister had no idea if the fees he was intending to levy would actually contribute anything to the state.
The Minister couldn’t deny it, having already said his department- which is involved in preparing the national budget- couldn’t give any estimate
In fact, it is quite possible that the fees might cost us extra. That we would actually spend money to collect less money.
It was then that the Minister told us that what mattered wasn’t whether the fee made money. It was that he didn’t want people getting something without paying for it. “In the current climate. ”
The State couldn’t have a situation where people could just get access to their information for nothing- as if it was a right!
Citizens had to make a contribution.
Not a contribution to the costs, because who knows if the admin will eat it all.
Asked again about those fees, the Minister was worn out. Rubbing his eyes, perhaps wishing that-like Carroll’s Dormouse- he could just curl up and doze, he tried to make it clear to the rest of us:
He mostly needed to charge a fee to pay for the expense of charging a fee.
As an observer of the committee, this was a revelation.
I don’t know what the European Court of Justice would think of this.
I don’t know what the European Court of Human Rights would think of this.
I don’t know what the United Nations would think of this.
But I know what I thought of it.
I thought it was a polished, softly spoken outburst of irrationality.
I thought it was mad.
The Freedom of Information Bill 2013, legally speaking
The Government’s Bill to amend the Freedom of Information Acts 1997 to 2003 is, arguably, illegal. The modern understanding of the right to Freedom of Expression embraces also the right to receive information.
Restrictions on the right to free speech and/or the right to receive information are, in principle, breaches of legal provisions safeguarding that right, including the Irish Constitution, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the European Convention on Human Rights and the European Convention on Human Rights Act 2003.
Any legislation restricting those rights must itself be read restrictively to avoid any impermissible undercutting of a Constitutional or human right;
i. The Irish Constitution guarantees the liberty to freely express convictions and opinions.
ii. Article 19 of the Universal Declaration of Human Rights secures, in customary international law the following rights;
“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”.
iii. Article 19 of the International Covenant on Civil and Political Rights secures, in customary international law the following rights:
“1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.”
iv. Article 10 of the European Convention on Human Rights reads:
Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
v. Sections 2 and 3 of the European Convention on Human Rights Act 2003 read:
“2.—(1) In interpreting and applying any statutory provision or rule of law, a court shall, in so far as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State’s obligations under the Convention provisions…..”
“3.—(1) Subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the State’s obligations under the Convention provisions.”
In the light of the foregoing the Government is currently proposing, in charging up-front fees, and now advocating the adoption of an amendment to Section 12 of the Freedom of Information (Amendment) Bill 2013, to obstruct and inhibit access to public information, in direct and immediate breach of Section 3 of the European Convention on Human Rights Act 2003 and, as will in due course be shown, Article 19 of the Universal Declaration of Human Rights and Article 19 of the International Covenant on Civil and Political Rights. These Articles are part of customary international law and are binding on Ireland.
Modernising Irish Copyright
Experts come in all shapes and sizes. Some deliver the equivalent of “flat-pack” reports; you have to assemble the useful product yourself.
That has not happened with the excellent Report of the Copyright Review Committee chaired by the tireless Eoin O’Dell
Its report is fully and instantly usable, subject to going through Dáil Éireann.
What’s not to like, when the Committee drafts your legislation and then goes on to draft suggested amendments to the District Court rules?
At McGarr Solicitors, we have nothing but good to say about the Report, despite some hurt to this particular head in just reading it (and disappointment that Mickey Mouse continues to escape his overdue copyright death, by sheltering from mousetraps in the EU bureaucracy [dressed in the legal equivalent of a US-provided Ironman outfit]).