Call McGarr Solicitors on: 01 6351580

EMI Records [Ireland] Ltd and Ors sue Irish ISPs

An interesting case has appeared in the High Court search system.

Yesterday, EMI Records [Ireland] Ltd, Sony Music Entertainment [Ireland] Ltd, Universal Music Ireland Ltd and Warner Music Ireland Ltd filed papers in the High Court central office to commence proceedings against UPC Communications Ireland Ltd, Vodafone Ireland Ltd, Imagine Telecommunications Ltd, Digiweb Ltd and Hutchinson 3 G Ltd.

The case is listed before the Commercial Court on the 17th December by way of Notice of Motion.

This, of course, will come to no surprise to anyone who followed the StopSOPAIreland campaign at the beginning of this year. The fact that the defendants do not include eircom (the only ISP to introduce the three strikes system the music label companies have demanded they are due by right, and the only ISP currently blocking the PirateBay after the music label companies made an undefended application to the High Court) is highly suggestive of the Plaintiff’s intent.

On the 5th December 2011 representatives of EMI and the other music companies met with Minister of State Sean Sherlock. They said they intended to seek the implementation of the SOPA-like Statutory Instrument so that they could seek injunctive relief against ISPs. You can read the memorandum of that meeting. They told the Minister “the wording of the SI as published is ideal” .

On the last day of February this year, the Government gave them their ideal law.

We may be seeing, on the 17th December of this year, the first of the predicted applications to block Ireland’s users from accessing particular websites.

If so- and the applicants are successful- it difficult to imagine that it will be the last.

Newspaper Licensing Ireland: 2nd letter for Women’s Aid re paying to link to newspaper websites

The following letter was sent on behalf of Women’s Aid to Newspaper Licensing Ireland Limited.

The first letter to Newspaper Licensing Ireland Ltd can be read here:

Newspaper Licensing Ireland Ltd asks Women’s Aid for money to link to newspaper websites

Women’s Aid have agreed to allow us to publish their responses in the hope that it may prove helpful to other non-profit bodies who may receive similar requests.

We have not charged any fee but if you feel like it, you can donate to Woman’s Aid to assist them in providing services to women who have suffered domestic violence

*****

Our Ref: WOM001/01/SMcG

21st November 2012

 

Newspaper Licensing Ireland Limited

Clyde Lodge

15 Clyde Road

Dublin 4

Re: Women’s Aid

Dear Sirs,

We refer to your letter of 23rd May 2012, in response to ours of 10th May, 2012. We note that your primary consideration in that letter appears to be unhappiness that we sought to make our own correspondence with you (but not your replies) public. We believe the subject matter of this correspondence is a matter of public importance.

Our client is engaged in not-for-profit work of the greatest importance to the most vulnerable of women. It is our view that the position adopted by your members has very low social utility. We also doubt that your members will facilitate any robust treatment of that position in the newspapers they control. These are private views but it is views like that that go to make up the public space that ultimately is organised by “politics”. We do not seek to impose any political view on you or your members but we decline to ignore that dimension entirely and in publishing our side of the correspondence express our view, or point to it, without making it the justification of our position.

We are instructed by our clients that following our letter of the 10th May 2012 you continue to contact them and to seek to “discuss” the matter. There is, in fact, nothing to discuss. Our letter of 10th May, 2012 sought two quite specific pieces of information:

  • Whether the copyright in the articles in question was owned by newspapers or by authors, and if the latter, whether you are authorised by the said authors to license their work.
  • Under what statutory provision you sought to require a license for linking to materials published on newspapers’ websites

Your letter of 23rd May, 2012 failed to answer either of these questions. In respect of the former question, you refer to section 23 of the Copyright and Related Rights Act, 2000 and state that it has no relevance. We fail to see how a provision that “The author of a work shall be the first owner of the copyright” can be irrelevant to the instant case, and believe that your assertion of such irrelevance is simply an attempt to ignore an inconvenient legal reality.

In respect of the latter question, you make repeated references to “clippings”. Our client, as made clear in our letter of 10th May, 2012, does not use newspaper clippings. You further assert that a license is required for the following: “Photocopying of newspaper articles, scanning of press clippings, the viewing of articles on a website hosted by a press cutting agency, the sending of articles to clients or other third parties”. None of these practices are or have ever been engaged in by our client, and we are at a loss as to why you have referred to them. The practice our client does engage in, linking to the websites of your members, thus driving up their traffic and advertising revenue, is nowhere addressed. We conclude from this silence that no license is in fact legally required for such activity.

We have a theory to explain the mistakes of your members; they succeeded in the past in extracting fees from “newspaper clippings” agencies and cannot reconcile themselves to the loss of that golden age. That they should fail to recognise the difference between such an agency and Women’s Aid is more a measure of desperation than the basis for a claim of right.

If your members were really serious in holding their position they would issue proceedings against Google. Google’s search engine is far more intrusive in its collations than the modest links of Women’s Aid. We know of no such proceedings by your members and anticipate none.

Accordingly, any further discussion of the matter is futile, as there is nothing to discuss. We ask therefore that you cease to contact our client, which finds your attentions an unwelcome imposition. Any continued attempts by you to contact our client would constitute harassment of an organisation that has neither a duty or the resources to reply to groundless claims.

Yours faithfully,

 

______________

McGarr Solicitors

Injustice

This writer is reading a book with the same title as this post. The author of the book is Clive Stafford Smith, a lawyer with a very unusual legal practice. He represents, inter alia, persons on Death Row in the USA. I recommend the book. It is well written and an excellent Christmas present for most lawyers.

The subject of the book is the wrong that is a judicial death sentence. Even in a Europe without the death penalty, this is not an easy proposition to advance or defend. Instead, the ostensible subject of the book is how it is possible to be convicted of a crime you did not commit.

Because of his personal experience the author has settled and very interesting views about forensic or expert evidence. He denies the validity of forensic ballistics and hair comparison but he goes much further; he points out how improbable it is that a defence lawyer will find a ballistics or hair comparison expert who will belittle those “sciences”. After all, nobody would study those issues unless they were convinced, in the first place, they were valid.

The author remarks how lawyers are not likely to challenge these experts. He says the lawyers made their choice of profession because they were incapable of understanding the science subjects that are required for the practice of medicine and are too easily intimidated by the “scientists” of ballistics and hair comparison.

His views on ballistics are persuasive. The manufacturers of microscopes helpfully have produced one permitting the examination and comparison of two bullets at the same time. The expert is seeking the unique pattern of grooves generated by the passage of the bullet through the barrel of the gun. What Clive Stafford Smith denies is this; that there is a unique pattern of grooves generated by the passage of a bullet through the barrel of a gun. Guns are mass produced, therefore the barrel of one gun is very like the barrel of another gun and it is not the case that the pattern of grooves generated by the passage of the bullet through the barrel of the gun is unique to any particular gun.

His views on finance for the law are even more persuasive. If a defendant cannot afford to pay the economic cost of a proper defence in a criminal trial, or the state fails to allocate funds for that purpose, the accused will be convicted even though innocent. What is the economic cost of a proper defence? Inevitably, it will vary from case to case, but Clive Stafford Smith estimates that 1,000 hours will be needed for the task. That’s 83 days. Now assume an hourly rate for the lawyer at €300 (because that is less than the rate allowed by the Irish High Court for some company liquidators) and we can work out the cost of the defence, – €300,000.

Is that what Irish criminal lawyers get paid? No.

Savita Halappanavar and HIQA

If the Health Information and Quality Authority do launch an inquiry it can do so only within the terms of Section 9 of the Health Act 2007. That Section limits HIQA inquiries to those into

“…the safety, quality and standards of services if … there is a serious risk to the health or welfare of a person receiving those services…”.

That would appear to preclude HIQA from inquiring into the death of Savita Halappanavar; there is now no risk to her health.

In fact, there are only two types of “inquiry” where the proper questions can be put to the appropriate medical practitioners; disciplinary proceedings before the Medical Council and proceedings in court in a medical negligence/malpractice suit. If the proceedings are in court, the HSE will be the defendant. (The HSE currently objects to the citation of individual medical practitioners in such proceedings, on the ground that the proceedings should be conducted on the “enterprise” principle, i.e., that the HSE is vicariously liable for the malpractice of medical practitioners and that it is invidious to focus on the practitioner by citing him/her as a defendant).

The questions set out below are relevant questions for any effective inquiry into the death of Savita Halappanavar . A HIQA inquiry cannot ask those questions, and if it did, the medical practitioner need not reply.

Consequently, HIQA aervices or functions are redundant in relation to Savita Halappanavar.

QUESTIONS:

1. Identify and describe the appearance of each and every person who was present in the vicinity of Savita Halappanavar on the occasion of each of the alleged occurrences being the alleged failure to provide appropriate medical care and relief, giving the name, address and occupation of each such person and stating your relationship to each.

2. Describe in detail all aspects of your professional medical relationship with Savita Halappanavar, indicating the date of commencement, the nature and extent of your medical relationship prior to the alleged occurrences, and the date and circumstances of the termination of your professional medical relationship.

3. In reference to the condition of Savita Halappanavar, her pregnancy and death, that forms the basis of the complaint, set forth:

(a) the date(s) and circumstances under which you saw Savita Halappanavar ;

(b) any and all medical history given to you;

(c) the examination(s) conducted of Savita Halappanavar;

(d) your findings on each examination;

(e) your prognosis and diagnosis following each examination; and

(f) any treatment or medication prescribed or requested.

4. Attach your Curriculum Vitae or describe in detail your education, training, experience, published materials, service on boards and committees, continuing education and certifications, prior work and hospital affiliations, licenses and specialties.

5. Have your full rights or privileges to practice medicine been suspended, revoked or terminated in any state or hospital since you started to practice medicine? If the answer to this question is in the affirmative, state:

(a) the reason why your full rights or privileges to practice medicine or any hospital association were suspended, revoked or terminated; and

(b) the name of the state or hospital that suspended, revoked or terminated your full rights or privileges to practice medicine.

6. If you have ever been a defendant in a medical negligence/malpractice claim other than the present one, identify the case by name, court and record number, and summarize the allegations against you and the outcome of the case, including the terms of any settlement.

7. Attach a complete copy of any written records or documents that you have regarding Savita Halappanavar , along with a typed transcription of any handwritten records and documents.

8. Attach a copy of all documents that Savita Halappanavar signed consenting to any treatment or procedures performed or prescribed by you, as well as a copy of any literature, material, pamphlets, instructions or other information or documents that you supplied to Savita Halappanavar.

9. List all risks that you described to Savita Halappanavar with respect to any treatment or procedures you prescribed or performed.

10. If you contend that Savita Halappanavar’s injuries were caused in whole or in part by an inherent defect in a drug, instrument, implement or other type of product or substance, identify each such allegedly defective item, including in your identification:  (a) a complete description of its appearance, and appearance of its container or wrapper, if any;

(b) the name and address of its manufacturer;

(c) the name and address of the dealer or seller who sold it to the person who owned it at the time of the alleged occurrence;

(d) the name, occupation, title, address and professional relationship to you of the person who owned it at the time of the occurrence;

(e) a description of the use to which it is normally put;

(f) its serial number, batch number or other specific identifying characteristics; and

(g) the medical name for this product and a lay description of it and its use.

11. If there were any reviews performed, including investigations undertaken, hearings held or reports prepared, by the hospital, its medical staff or any officer, committee or agency of the hospital or any public body or other person or persons concerning the condition that forms the basis of the complaint, state:

(a) the name and position of the person, persons or committee that performed the review;

(b) the date and time of each review;

(c) the name, address, profession or professional relationship to you of all persons present at each review;

(d) the nature and purpose of each review;

(e) whether the review was recorded; and

(f) the name and address of each person who has any records concerning each review.

12. Did you refer to or rely upon any medical texts or publications or ethical guidelines in connection with the diagnosis or treatment of Savita Halappanavar? If so, identify those items by title, author and publisher.

13. If you intend to rely on or use in any way in any inquiry or trial any treatise, identify the treatise by title, author and edition and indicate the pertinent portions to be relied on or used at inquiry or trial.

14. If you claim that the alleged occurrence resulted from Savita Halappanavar’s own lack of care, set forth as fully and specifically as you can what acts, conduct or omissions constituted such lack of due care.

15. State the names and addresses of all consultants or other physicians who saw, examined and treated Savita Halappanavar at your request for the condition forming the basis of the complaint, and in relation to all such consultations or examinations by other physicians indicate:

(a) the reason you requested consultations or further examination;

(b) when the consultation or examination took place; and

(c) all opinions or reports rendered to you by the consultant or examining physician.

16. Savita Halappanavar’s spouse in the complaint, alleges that while under your care, she died. In relation to such outcome, indicate in your opinion the cause of that outcome.

How to request your Medical Records and pay less

Hospitals and doctors’ offices in Ireland will give a person their medical records if they ask for them.

Mostly. Eventually. When they get to it. And, sometimes, if you pay them over €100 (for a large file).

But, like so much else in the legal world, there is a set of magic words you can incant to place a 40 day deadline on the delivery of your papers and limit the cost to €6.35.

You invoke the Data Protection Acts data access request procedure.

A sample letter is given on the Data Protection Commissioner’s site.

Here it is at the bottom of this post very very slightly amended.

Sign it. Print it. Put it in an envelope with a bank draft, cheque or postal order for €6.35 and post it in a post office. You don’t have to pay for registered post. Just ask at the counter for a Certificate of Posting, which is free.

Keep the Certificate somewhere safe and then put a reminder in your diary to write again demanding a response if you haven’t got your papers within 40 days.

Our experience suggests, you will have them.

Any Medical Negligence case we take on will start with a request of this sort but you might have your own reasons for looking for your file.

It is your personal data.

 

<<Your Name>>

<<Your Address>>

The Data Protection Officer

<<The Hospital or Doctor’s Address>>

 

Re: Data Access Request from <<Your Name>>

DOB: <<Your Date of Birth>>

Dear Sirs,

I wish to make an access request under the Data Protection Acts 1988 and 2003 for a copy of any information you keep about me, on computer or in manual form.  I am making this request under section 4 of the Data Protection Acts.

I enclose a cheque for €6.35, being the maximum fee possible for such a request.

Please send all replies, including copies of all data to me at my above address. 

Yours faithfully,

 

 

_______________

<<Your Name>>

How (and why) to complain about an unwanted political Automatic Phone Call

There are reports today of people receiving automatic dialling machine telephone calls relating to Ireland’s abortion legislation.

Any group using these sorts of ‘robo-dialling’ systems, which are common in the USA, should first make themselves aware of the restrictions in this jurisdiction on this sort of communication.

Directive 97/66/EC of the European Parliament and of the Council of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector (or The Directive, to its friends) was brought into law here over 10 years ago through the Data Protection Acts.

Article 12 of the Directive says

“1. The use of automated calling systems without human intervention (automatic calling machine) or facsimile machines (fax) for the purposes of direct marketing may only be allowed in respect of subscribers who have given their prior consent.”

The question of whether an autodialler political campaign falls within the remit of this ban was considered by the Data Protection Commissioner in Ireland in 2002.

In his guidance note on the topic, the Commissioner ruled that he

“considered that the political canvassing messages came within the terms of the Regulations and as such were a form of direct marketing.”

The  Data Protection (Amendment) Act 2003 refined that position by defining direct marketing as including “direct mailing other than direct mailing carried out in the course of political activities by a political party or its members, or a body established by or under statute or a candidate for election to, or a holder of, elective political office.”

It is also a requirement of the Irish Regulations that

“A person who uses, or causes to be used, any publicly available telecommunications services to make an unsolicited call for the purpose of direct marketing shall include in such a call the name of the person and, in addition, in the case of a call by means of an automatic calling machine or a facsimile machine or if a person who receives the call so requests, either the address of the first-mentioned person or a telephone number for a line on which that person may be contacted.”

As the calls reported on today seem not to fall within the political communication exception- not coming from any recognised political party, candidate or candidate for election- each call complained of could potentially attract an individual criminal conviction and fine. Only calls which prompt a complaint can attract any conviction.

Complaints to the Data Protection Commissioner can be made on-line for free. A complaint should include the date and time of the call and, if it wasn’t blocked, the number the call was made from.

How to get rid of a NUI Senator

 

Although the Government has committed itself to holding a referendum to abolish the Seanad, institutions tend to be resilient and governments who have difficulties tend not to call avoidable referenda.

That being the case, what should you do if you really wish one of the NUI Senators didn’t keep being elected? Whether it is Senator Ronan Mullen with his words, Senator Prof. John Crown with his trying to stop people dying of cancer or Senator Fergal Quinn with his shops and such, we all have an NUI Senator we love to hate. The NUI Senate panel is like Dallas, with an embarrassment of JRs.

But how to rid yourself of your chosen Senator? This is a short guide.

Good news: it’s short, because it’s quick and easy to do.

1) Be an NUI Graduate.

2) Be an Irish Citizen.

3) Fill out this form

4) Post it to The National University of Ireland, 49 Merrion Square, Dublin 2

This is a vote you don’t get automatically. You only get it if you claim it.

You must have sent in that form by February 2013 to get on the register. But best if you send it in tomorrow, so you don’t forget.

Lucinda Creighton’s legal bill

This post is not about the facts of O’Flynn v Creighton, currently at hearing. Except for one fact. How is Lucinda Creighton going to pay for her legal representation? She is in the middle of a very expensive form of litigation. The costs are particularly high in defamation actions.

Leaving aside the fact that she is in receipt of a substantial income as a Minister of State, there is no Legal Aid for defamation actions. Even if she were as poor as a church mouse she would not get legal aid.

So what? Why should anybody get legal aid in such a case? Because without some funding help, a person might not get justice.  It is impractical to think that justice is possible for a lay litigant. In the Irish court system, the judge is not intended to help one party at the expense of the other. If that happens in a case with a lay litigant (as it most likely would), the help will be minimal; otherwise the party with the legal representation will simply appeal to a higher court and have no difficulty finding grounds for the appeal.

What has this to do with Lucinda Creighton? Well, it brings to mind the McLibel case. Ultimately, the UK itself lost the McLibel case. Ireland is perfectly poised to follow it to ignominy.

Ireland’s continuing failure to make proper, modern provision for the funding of litigation of any type (except, minimally, Family Law) is a scandal and will eventually cost a lot of money.

High Court Personal Injury trials

Each relevant day the Legal Diary carries this message;

“With effect from Thursday the 1st December 2011 the following arrangements will apply to all cases listed in the Dublin Personal Injuries List. Cases not assigned to a judge for hearing on the day on which they are listed will roll over from day to day until the end of that week. Any cases not reached or commenced at the end of a week will be dropped from the list and will require, in due course, an application to be made for a new hearing date in the usual manner. All Specially Fixed cases and cases afforded priority will retain priority over other cases and will be assigned for hearing in the order in which they appear in the list. All other cases will be assigned for hearing at random each day and not in the sequence in which they appear in the list….. Parties must notify the Court if an Action is likely to take more than four days for hearing.”

The trial of any High Court personal injury action is a complicated project. Like all cases, it is a contest between the Plaintiff and the Defendant. In some cases much will have been agreed or conceded; in others everything will be in issue.

The trial must be run in accordance with the rules of evidence. So, in the absence of agreement, a Plaintiff must prove the injury and its extent and consequences and that the Defendant caused it. The second of those issues is the liability issue, the first is the quantum issue. Sometimes the quantum issue is a liability issue; the Defendant may not dispute that the Plaintiff is suffering some health problem but may dispute that the Defendant caused the health problem.

In these circumstances the Plaintiff will have to bring his/her doctors to court to give evidence and be cross-examined. (Of course, the Plaintiff will also be giving evidence of, at a minimum, his/her injuries.)

Doctors are busy people, some more than others. A doctor may be habitually in surgery, working long and erratic hours. Nonetheless, when requested to attend court to affirm the contents of a medical report, the doctor has a professional duty to attend.

But when? The quoted notice sets out the position; no ordinary personal injury case listed for hearing in the High Court is assured a hearing, not to speak of a hearing date. But, the Plaintiff must turn up on the date the case is listed. The Plaintiff must be ready to prove the case. Then the court system fails the Plaintiff. There are no judges available to take any of the listed cases. Even if there is a judge, each case is put into a lottery to see which case(s) will go the available judge(s).

Not to worry, there is always tomorrow. Indeed, but what about the witnesses? They presumably made arrangements to drop work promptly on getting the call from the Plaintiff’s solicitor and go to court in accordance with some scheduling scheme of very delicate construction (because it is difficult to estimate for how long a prior witness will be giving evidence).

And what of the Plaintiff and his/her supporters/relations? They have to put their employment on hold. But read the notice; the case will roll over from day to day to the end of the week. So the time out from ordinary mundane life lasts just a week (less one day; Monday is exempt from trials).

Who pays for these waiting days? The Plaintiff must pay, because the Defendant will not be obliged to pay for the delay. It was, after all, generated by the Courts Service, you might think.

In the view of this writer you would be wrong. It is wrong to think that every personal injury action must have a trial. This is impossible; there are not enough court resources (judges, courtrooms etc.) to deliver this in fact.  So, the system must be one that achieves settlements acceptable to Plaintiffs and Defendants. A system which establishes principles of liability, and quantum values, is the required system. If a Defendant knows that the system will deliver a judgment for the Plaintiff and knows what the compensation for the Plaintiff is likely to be only two issues remain to be vouchsafed; that the costs will increase with the passing of time and that those costs will have to be met by the Defendant.

That is the system that currently is missing in the Irish High Court and that explains the notice in the Legal Diary.

The Medical Council’s Guidance on Abortion

The Medical Council is the professional governing body for doctors in Ireland.

It describes its role as being “responsible for protecting the public by promoting and better ensuring high standards of professional conduct and professional education, training and competence among doctors. Doctors must always be guided by their primary responsibility to act in the best interests of their patients.”

To aid Doctors in meeting those responsibilities in difficult situations, the Medical Council has produced The Guide to Professional Conduct and Ethics for Registered Medical Practitioners.

It deals with the expected norms of professional conduct and practice and aims to help guide its member doctors to making good decisions.

Section 21 deals with the issue of Abortion.

Section 21.1 reads

21.1 Abortion is illegal in Ireland except where there is a real and substantial risk to the life (as distinct from the health) of the mother. Under current legal precedent, this exception includes where there is a clear and substantial risk to the life of the mother arising from a threat of suicide. You should undertake a full assessment of any such risk in light of the clinical research on this issue.

Section 21.2 deals with information about abortions.

Section 21.3 deals with the duty to provide care and support for women who have had abortions abroad.

Section 21.4 states

21.4 In current obstetrical practice, rare complications can arise where therapeutic intervention (including termination of a pregnancy) is required at a stage when, due to extreme immaturity of the baby, there may be little or no hope of the baby surviving. In these exceptional circumstances, it may be necessary to intervene to terminate the pregnancy to protect the life of the mother, while making every effort to preserve the life of the baby.

This is the standard by which medical professionals should be judged, by their own regulatory body and by the rest of us.

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