The Plaintiff was employed in the Defendant’s factory. There was a very large propane gas explosion and the Plaintiff was burned and his back was injured. His lip was perforated and he experienced a great deal of pain. He developed a phobia about fire.
I left my heart in San Francisco
The theft of the remains of a human heart in Argentina is reported.
If the event had happened in Britain or Ireland it might raise some thorny questions of law.
In Ireland the ostensible relevant offence would be Section 4 of the Criminal Justice (Theft and Fraud) Act 2001, which provides:
4. â(1) Subject to section 5 , a person is guilty of theft if he or she dishonestly appropriates property without the consent of its owner and with the intention of depriving its owner of it.
The Act defines property:
âpropertyâ? means money and all other property, real or personal, including things in action and other intangible property;
At common law there is not, and never was, a property in a human body. In the UK it is possible, apparently for property to subsist in part of a human body that being, allegedly, a consequence of the provisions of Section 4 of the Theft Act 1968 in the UK, on the grounds set out in R v Kelly [1999] QB 621 where a judge stated:
To address the point as it was addressed before the trial judge and to which his certificate relates, in our judgment, parts of a corpse are capable of being property within section 4 of the Theft Act 1968 if they have acquired different attributes by virtue of the application of skill, such as dissection or preservation techniques for exhibition or teaching purposes, see Doodeward v Spence 6CLR 406, 413, 414 in the judgment of Griffith C.J. to which we have already referred and Dobson v North Tyneside Health Authority [1997] 1WLR 596, 601 where this proposition is not dissented from and appears in the judgment of this court to have been accepted by Peter Gibson LJ; otherwise, his analysis of the facts of Dobson’s case, which appears at that page in the judgment, would have been, as it seems to us, otiose.”
And also:
We accept that however questionable the historical origins of the principle, it has now been common law for 150 years at least that neither a corpse nor parts of corpse are in themselves and without more capable of being property protected by rights: see for example, Erle J, delivering the judgment of a powerful Court for Crown Cases Reserved in Reg. v Sharpe [1857] Dears. & B. 160, 163, where he said: “Our law recognises no property in a corpse, and the protection of the grave at common law as contradistinguished from ecclesiastic protection to consecrated ground depends on this form of indictment.” He was there referring to an indictment which charged not theft of a corpse but removal of a corpse from a grave.â?
In AB & Anor. v Leeds Teaching Hospital & Ors [2004] EWHC 644 (QB)
the court referred to Clerk & Lindsell on Torts 18th Edition and quoted it as follows:
Dead Bodies and Human Tissue
There is no property in a corpse. (However, personal representatives or other persons charged with the duty of burying a body have a right to its custody and possession in the interim, infringements of which are actionable, and by statute those representatives also have certain powers in relation to the use of a body for medical purposes.) On the other hand once a body has undergone a process or other application of human skill, such as stuffing or embalming, it can it seems be the subject of property in the ordinary way. And the same goes for body parts: thus in the grisly case of R v Kelly robbers who abstracted and sold preserved specimens from the Royal College of Surgeons’ collection were held rightly convicted of theft. It is an open question whether there can be property in bodies and body parts which have not been subject to any such process, but are legitimately wanted for some other purpose, such as accident investigation or use as an exhibit in court. ⦠In so far as there can be property in corpses or parts thereof, presumably it will vest initially in person carrying out the stuffing or embalming process, or taking steps for their preservation, on the basis that he is the first possessor.”
The issues were adverted to by the Irish High Court in O’Connor & Anor v. Lenihan [2005] IEHC 176 (9 June 2005)
In facts not very dissimilar to those in AB v Leeds (see above) the Plaintiff claimed, inter alia, for Bailment, Conversion, Detinue and Trespass but as the judge remarked
The remaining claims are not being pursued by the plaintiffs and there is no need to address them in this judgmentâ?
Currently there is no reported case on Section 4 of the Criminal Justice (Theft and Fraud) Act 2001 as to whether the section extends to parts of a human corpse as, reportedly, Section 4 of the Theft Act 1968 does.
In AB & Anor. v Leeds Teaching Hospital & Ors [2004] EWHC 644 (QB) the judge stated:
But in the absence of such a cause of action in respect of the body of a deceased person being recognised by an English court I am not prepared to hold that one does exist.
Given the statement of the head of the monastery from which the heart was stolen, – “The theft was carried out because of the heart – nothing else was stolen,” – it would be very doubtful if the âtheftâ? would be chargeable in Ireland and, possibly, in Britain,
Facebook’s European Privacy Problem
WHAT ARE YOU LOOKING AT?, originally uploaded by nolifebeforecoffee.
There is a suggestion in the Irish Times that Facebook Inc may be considering locating a European base of operations in Ireland. In that context it may be useful to consider the current situation regarding Facebook, its attendant applications and their use of Irish and
European users’ Personal Data. The main question is whether all of Facebook’s behaviour is in compliance with Europe’s Data Protection Law, and the extent to which that law may apply to either Facebook Inc or any of the controllers of the Applications which rely on its systems.
This discussion is intended to be readable by a non-lawyer but it is inescapable that some law has been quoted. Please bear with us though the legislative turbulence.
Data Protection’s Roots
The EU’s Data Protection Directives were introduced to eliminate potential inhibitions to trade arising from differing degrees of Data Protection in Member States. Directive 95/46 explicitly recognises the right to privacy contained in EU law and in the European Convention on Human Rights (ECHR). Breaches of that general right to Privacy are only acceptable if justified under the exceptions allowed for in Article 8 of the ECHR. See this informative posting by Thomas Otter for more background.
The Directives and the implementing Acts are intended to protect the personal data of EU citizens in a uniform manner across the EU. Personal Data is defined by Directive 95/46 Art 2(a) as
any information relating to an identified or identifiable natural person
What is the meaning of Processing in the context of the Directives?
Directive 95/46 defines it as including, but not being limited to
collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction
Directive 95/4 Art (3)(2)(e) allows an exception for
processing of data carried out by a natural person in the exercise of activities which are wholly personal or domestic, such as correspondence and the holding of addresses.
It should be clear that a PR person dealing with their address book falls outside this exemption, but that it allows for private people to keep a gmail address book, and even perhaps to check it against membership of Facebook, provided that action is entirely personal or domestic. If a person is in a business where networking or keeping connections was required for their work, it is likely that this would fall outside the remit of the above exemption.
Part of The Establishment
Directives are high level legislation which set out what each member state must ensure is law in their jurisdiction. It is up to each member state to bring their laws into line with those aims in whatever form is most suitable for their legal system. In Ireland, the Data Protection Acts set out to whom their provisions apply. In Section 3B, they include entities established in the state. Facebook seems to fall within one of the definitions of an entity established in Ireland. (Section 3B (a)(ii))
makes use of equipment in the state for processing the data otherwise than for the purpose of transit through the territory of the State
I think one such piece of equipment, given the earlier quoted definition of processing as including “dissemination or otherwise making available” personal data, is sitting on my desk.
Facebook Inc already has an office in London. This also puts them within the alternate definition of “establishment” ( in the UK) in Section 3A (a) as having
an office, branch or agency through which he or she carries on any activity
But, one of the difficulties for transnational companies is that the Directive doesn’t allow them to pick just one EU country and comply with its Data Protection laws. Directive 95/46 Recital 19 puts an onus on a Data Controller established in multiple territories to fulfill the obligations of all those states.
One of Ireland’s obligations is that if a data controller is outside the EEA (which Facebook Inc is) and the data is processed inside this state (which, we’ve suggested above, happens with Facebook data) they must “designate a representative established in the State” (per the Data Protection Acts Section 3B(c)). I have not been able to find if Facebook has designated anyone as their representative in Ireland.
Consent by the person whose personal data is processed does not remove the duty to register as a data Controller or Processor.
Safe Harbour?
Thomas Otter, whose excellent article on Facebook and Data Protection I linked to above, refers to Facebook Inc as claiming “safe harbour” status. This is a method by which companies and organisations working in countries which have not been deemed to have adequate protection for data may export the data of European citizens to those countries. In effect these organisations pledge to meet the requirements of the Data Protection Directives themselves.
US Companies who want this status must register with the US Department of Commerce and have a Privacy Policy which complies with the terms of the Data Protection Directives. The problem for Facebook Inc is that they seem to have grown so quickly that their systems haven’t caught up with their compliance requirements in this area. For example, as reported by Channel Four News late last year, Facebook will resist requests to delete the Personal Data it holds when asked to do so by the data subject. Alan Burlison was the source of that report, and he outlines on his blog the responses he got from Facebook, and then, following his complaints, from the UK Information Commissioner and from Truste, a 3rd party who certifies compliance with European Safe Harbour requirements.
Here’s the response he initially received;
If you deactivate, your account is removed from the site. However,
we save all your profile content (friends, photos, interests, etc.), so
if you want to reactivate sometime, your account will look just the
way it did when you deactivated.
After Channel Four News came and interviewed him, he received a follow-up email;
We have permanently deleted your account per your request. We do
not retain any information about your account once it is deleted,
and thus deletion is irreversible.
This shows that compliance with the Data Protection principle that a person has a right to have information stored about them amended or erased is technically possible. It just isn’t policy. Which would put Facebook’s real data handling policies at odds with the claim to be a Safe Haven. Which in turn would raise the question of whether it is lawful for it to pass that data outsi0de EEA borders. Which, of course, is exactly what it potentially does every time a developer for the Facebook Platform creates an application.
Failure to comply with the provisions of the Data Protection Act is a criminal offence. If European users suffer a loss arising from unlawfully held personal data they would have grounds for an action against Facebook Inc. Facebook’s privacy policy shows that it is aware of the Data Protection Directives. This potential financial risk is something which they will know or ought reasonably to know about, it can be presumed. I can’t speak for Californian law, but here the common law burden of Director’s duties to their companies may leave those directors personally liable for losses which arise from a breach they ought to have reasonably avoided.
Applications, Complications
In all of this discussion, I’ve treated the Facebook Inc database as a single, unitary item. But, of course, pieces of it are passed to third parties when a Facebook member agrees to install an application. This agreement in total consisting of not unselecting a tickbox beside the statement “Allow [Application Name] to access my information.” It is arguable that this wouldn’t, by itself, be enough to constitute genuine consent.
Where are these third parties based? Certainly some of them are in Europe. We’re not privy to the terms of any given agreement between Facebook and an Application controller. Nonetheless, questions need to be raised about the data protection standards of the entities or people controlling these applications. Are they registered with the local Data Protection Commissioner in each state they are established? Are they all registered as Safe Harbours if they are based in the US? If not, what liability may attach to the developers or their employers arising from these applications in the case of any future claims?
Endnote
Data Protection law is a relatively new field. There is not a great deal of caselaw clarifying these matters. This puts anyone trying to apply it to a real world situation in the unhappy position of attempting to interpret the legislation- a task best left to judges. Nothing I say here should be taken as legal advice.
THE VIEWS AND COMMENTS EXPRESSED HEREIN ARE THOSE OF, AND PERSONAL TO, THE WRITER, AND ARE INTENDED FOR GENERAL DISCUSSION PURPOSES ONLY. THEY ARE NOT INTENDED TO BE RELIED UPON BY ANY PARTY. NO REPRESENTATION OR WARRANTY IS GIVEN AS TO THE ACCURACY OR CORRECTNESS OF SAME, NOR ARE THEY REPRESENTED AS CONTAINING (OR AS A SUBSTITUTE FOR) LEGAL ADVICE OR ASSISTANCE. NO LIABILITY WHATSOEVER (WHETHER IN CONTRACT, NEGLIGENCE, NEGLIGENT MISSTATEMENT OR OTHERWISE AT ALL) IS ACCEPTED TO ANY PERSON ARISING OUT OF ANY RELIANCE ON THESE VIEWS.
Solicitors again!
Our profession has been getting a particularly bad press recently, all of it deserved. The trouble is erupting even as far away as Los Angeles. See HERE for details.
Arbitration: Whut’s dat?
We cannot avoid unpleasant facts forever. So, not only do the lawyers become judges but they thereafter scandalize the world (the non-lawyer world anyway; lawyers know more than they can tell).
Perhaps it is all an accident [somewhat like a wardrobe malfunction]; perhaps it is badness or the corruption of power. Who is to say?
Time, maybe, to look to Cardinal Charoni di Tempranillo for a cool sceptical attitude to these events. Although tolerant, he would surely advert to the counterfeit aspect of some judges.
But, you say, the US Supreme Court judges have grasped to their robed bosoms the fakery of a male Judge Judy. How can the counterfeit be false if it is endorsed by the Court, despite his being âroughed upâ?, as the press put it?
In truth, the acceptance of the case for consideration by the Supreme Court reveals the real problem. It is a representative court, infected with the preposterous notion that only a socially sanctioned procedure (litigation) can be the basis for the making, publically, of a moral judgment, exemplified by the fallacy that if Michael Mukasy does not define torture the US cannot be condemned for the use of torture.
Personal Injury: Case History – Dunne v Lyons Enterprises Ltd
The Plaintiff was a wages clerk employed in the Defendantâs bakery in Finglas. She was traveling to a canteen and passed a production area where cakes were being manufactured. There were crumbs and flour on the ground. She slipped on this and twisted her back in trying to maintain her balance. She was out of work for six months, had severe back pain for six months and less so for another six months. The defendant had advised workers âto wear sensible shoesâ?.
Shoplifting
The current Irish law on “shoplifting” is to be found in Section 8 of the Criminal Justice (Theft and Fraud Offences) Act 2001. The side note for the Section descriptively reads âMaking off without payingâ?.
The Section provides:
8. â(1) Subject to subsection (2), a person who, knowing that payment on the spot for any goods obtained or any service done is required or expected, dishonestly makes off without having paid as required or expected and with the intention of avoiding payment on the spot is guilty of an offence.
Shoplifting is a form of theft and could also be charged as theft under Section 4 of the Act, which provides:
4. â(1) Subject to section 5 , a person is guilty of theft if he or she dishonestly appropriates property without the consent of its owner and with the intention of depriving its owner of it.
The relevant differences between Section 8 and Section 4 are that the penalty under Section 4 is considerable; a fine or imprisonment for a term not exceeding 10 years or both.
The penalty under Section 8 is smaller: a fine not exceeding £3,000 or imprisonment for a term not exceeding 2 years or both.
In addition, Section 8 makes specific provision for the circumstances in which a suspected shoplifter may be arrested in a âcitizenâs arrestâ?. It provides:
An arrest other than by a member of the Garda SÃochána may be effected by a person under subsection (3) only where the person, with reasonable cause, suspects that the person to be arrested by him or her would otherwise attempt to avoid, or is avoiding, arrest by a member of the Garda SÃochána.
I have in my hand a piece of paper
In Fitzpatrick v DPP [2007] IEHC the High Court examined, inter alia, the provisions of Section 21 of the Road Traffic Act 1994 which reads:
21. â(1) A duly completed statement purporting to have been supplied under section 17 shall, until the contrary is shown, be sufficient evidence in any proceedings under the Road Traffic Acts, 1961 to 1994, of the facts stated therein, without proof of any signature on it or that the signatory was the proper person to sign it, and shall, until the contrary is shown, be sufficient evidence of compliance by the member of the Garda SÃochána concerned with the requirements imposed on him by or under this Part prior to and in connection with the supply by him pursuant to section 17 (2) of such statement.”
This section is, of course, of immense benefit to a prosecutor. It permits the proof of two matters in one fell swoop, each of which, if required to be proved in some other fashion would generate multiple occasions or opportunities for the prosecutor to slip on the proverbial banana skin.
In Fitzpatrick, the prosecution, for undisclosed reason, did not produce the Lion Intoxyliser machine certificate. (the Section 17 certificate). Instead, the prosecutor gave evidence of the readings obtained from the machine.
The High Court was asked to rule on the proposition that the readings could only be proved by the production of the machine readout.
The court said no. Secondary evidence could be given of the reading.
However, referring to Primor plc v Stokes [1996] 2 I.R. 459 the judge pointed out that the prosecutor, in meeting the burden of proof with secondary evidence was obliged to first establish the circumstances in which such proof could be availed of. Those circumstances are set out in Primor as follows:
The contents of a document may be proved by secondary evidence if the original has been destroyed or cannot be found after due search. Similarly, such contents may be proved by secondary [evidence] if production of the original is physically or legally impossibleâ¦â?
The prosecution, in failing to prove the circumstances in which the certificate was not produced was not to be permitted to give secondary evidence of the reading.
The judge also referred to Section 30 of the Criminal Evidence Act 1992, which reads:
where information contained in a document is admissible in evidence in criminal proceedings, the information will be given in evidence, whether or not the document is still in existence, by producing a copy of the document or of the material part of it, authenticated in such a manner as the court may approveâ¦.â?
Thus, if the prosecution had lost the original readout but had a copy, the copy (duly authenticated) would have been admissible under Section 30.
Civil Liability in Ireland for Death
Occasionally, a person suffers personal injury of such degree that they die of the injuries. If the injury is inflicted in circumstances where civil liability would lie in favour of the injured person, that is, where some person is at fault for the injuries, the injured personâs right of action for compensation for pain and suffering ceases with the death of the injured person.
However, in those circumstances, under the Civil Liability Act 1961, a right of action continues, on the death of the injured person, in favour of the dependents of the injured/deceased person.
The method for the assessment of damages will differ from those applicable to a claim for personal injuries.
Instead, damages are mostly confined to the award of financial loss to the dependents of the deceased person, arising from the death. Loss arising from the absence of income would make up, by and large the greater share of this loss. Funeral and travel expenses are recoverable.
There is also a modest award, with an upper limit of â¬25,394, for mental distress.
These actions are commonly called âfatal injuriesâ? actions.
The variation frequently seen in the sums awarded reflect, usually, the differing earning capacities of the deceased and the degree of dependence of the claimants on the deceased. A dead stockbroker will usually have been earning more than a deceased garbage collector. A young, highly paid stockbroker will possibly leave dependents behind whose loss will be greater because of the high earnings of the deceased and the degree of dependency on the deceased.
Personal Injury: Case History – Fagan v Dublin Corporation IEHC
The Plaintiff was in Nutgrove fire station in Dublin. He was a fireman. He heard a car enter the forecourt of the station at some speed. He rose from his chair to look out the window, believing, mistakenly, that an emergency was developing. He tripped on linoleum which had been cut by workmen laying underfloor electric cables. They had not taped it back down or re-applied adhesives. The Plaintiff fell, injuring his wrist, knee and back. His back did not fully recover and he was unable to continue as a fireman. The High Court awarded him IR£75,217.