Friday, July 25, 2008

Funniest name for a firm of solicitors in Ireland?

When I read that an Irish firm of solicitors was named "Argue and Phibbs" I assumed that this was an urban legend. Apparently not:
Sligo Town on the Net has more on this wonderfully named firm.

Wednesday, July 23, 2008

Bebo, bullying and the law

The Irish Independent recently carried a story about what may be the first Irish case involving social networking to reach court:
A man has been prosecuted for putting offensive and obscene messages on social networking site Bebo in what is believed to be the first case of its kind to come before the Irish courts.

Paul Anthony Matthews (27) posted what a judge described as "outrageous" messages on a teenage girl's site on January 31 this year.

Matthews, of Carnbeg, Doylesfort Road, Dundalk, agreed to pay the victim €3,000 instead of going to jail.

The pioneering case was brought under Section 13 (1) of the Post Office Amendment Act 1951 for sending offensive or indecent material by means of telecommunication.

Matthews, a father of one, admitted posting explicit and abusive messages on the teenager's site. The victim cannot be identified because of a court order.

Dundalk District Court was told that Matthews had a previous disagreement with the then 16-year-old and posted the messages on her Bebo page. The teenager had made a complaint about Matthews to gardai regarding another matter and the Bebo messages were investigated.

Matthews was arrested and admitted when questioned that he had put up the messages on her site.
So what's the significance of this case? It's certainly not the first time that internet harassment has come before the courts in Ireland - as far back as 1999 a man was convicted of criminal libel for online postings (Mac RuairĂ­, “Man Jailed for Libel on the Internet”, Irish Examiner, December 21, 1999.) But it does seem to be the first time that this particular section has been applied to the internet, so it might be worth looking at it in more detail.

Section 13 has been heavily amended since it was enacted. (For the tortuous details see the Fourth Schedule of the Postal and Telecommunication Services Act 1983, section 7 of the Postal and Telecommunications Services Amendment Act 1999 and Regulation 4(8) of SI 306/2003.) The most recent change was brought about by the Communications Regulation (Amendment) Act 2007, which substitutes the following for section 13:
Offences in connection with telephones.
13.—(1) Any person who—
(a) sends by telephone any message that is grossly offensive, or is indecent, obscene or menacing


(b) for the purpose of causing annoyance, inconvenience, or needless anxiety to another person—
(i) sends by telephone any message that the sender knows to be false, or
(ii) persistently makes telephone calls to another person without reasonable cause,
commits an offence.

(2) A person found guilty of an offence under subsection (1) is liable on conviction—
(a) if tried on indictment, to a fine not exceeding €75,000 or to imprisonment for a term not exceeding 5 years, or to both, or (b) if tried summarily, to a fine not exceeding €5,000 or to imprisonment for a term not exceeding 12 months, or to both.
(3) A contravention of this section is an offence under the Post Office Act 1908.
(4) On convicting a person for an offence under subsection (1), the court may, in addition to any other penalty imposed for the offence, order any apparatus, equipment or other thing used in the course of committing the offence to be forfeited to the State.
(5) In this section, ‘message’ includes a text message sent by means of a short message service (SMS) facility.”.
This is, however, quite a narrow section. It is limited to messages sent by "telephone" (which, while it might be stretched to cover the use of dial up, probably excludes the use of e.g. cable modems). Although it includes text messages it does not mention email or other internet messages and wouldn't seem to be wide enough to include them (a point also made by Kelleher & Murray - Information Technology Law in Ireland (2nd ed.) at 690). In fact, the legislative history on this point indicates that "cyber bullying" was expressly excluded from its scope, with the Minister for State (John Browne) rejecting an amendment extending the section to cyber bullying, stating:
The purpose of amending the Post Office (Amendment) Act 1951 was to increase fines to deter nuisance calls to the emergency call answering service, ECAS. The change proposed by the Senators is a wider offence and I understand from the debate on Tuesday that they are particularly concerned about tackling cyber bullying. The issues were raised again today by the Senators. This type of regulation falls outside the remit of the Bill. The sole intention of this provision is to address nuisance calls to the emergency services. I have listened carefully as did the Minister, Deputy Noel Dempsey, to the points raised by the Senators. The purpose of the Bill is to deal with the regulation of a service. The areas raised by the Senators would be more appropriate to the Department of Justice, Equality and Law Reform.

To respond to Senator Terry, it is an offence under section 10 of the Non-Fatal Offences against the Person Act 1997 to harass a person by use of any means, including by use of a telephone. Therefore, the issue is already dealt with to a certain extent.
Consequently (though bearing in mind we only have media reports to go on) it's hard to see how this section was applied to the defendant's conduct in this case.

(It may be, however, that the prosecution mistakenly had in mind the previous version of section 13(1) which appeared to be substantially wider in that it prohibited the sending of any grossly offensive etc. message "by means of the telecommunications system operated by [any authorised undertaking]" - a formula which may have been wide enough to include internet connections.)

Instead, one would expect this type of situation should be dealt with (if criminal charges are necessary) by the offence of harassment under section 10 of the Non Fatal Offences Against the Person Act 1997, which explicitly includes communication with a victim "by any means".

At this point one might wonder - so what? Does it matter whether this conduct is dealt with under one of these offences rather than the other? I'd suggest that it does. Section 13 is designed to deal with nuisance telephone calls. These are peculiarly direct, immediate, personal and invasive of one's privacy. Consequently the law applies a low threshold - a single instance of gross offensiveness - before these become criminal. But this is very unusual. The law doesn't generally criminalise mere offensiveness, even gross offensiveness, nor should it. But if section 13 were extended to all internet communications then it would have just that effect - prohibiting a great deal of speech on the basis that some readers might find it grossly offensive. (Something which would, for example, make criminals of those who post the Danish cartoons portraying Mohammed.) Indeed, as Eoin O'Dell recently reiterated "It is precisely to allow the expression of offensive opinions that the right to freedom of expression is necessary."

Having said that, there may be a case for extending section 13 or a similar provision to some internet communications. For example, nuisance emails and instant messages share many of the characteristics of text messages, and in some circumstances messages left on a person's social networking page might be as invasive. But any extension of the law must be carefully limited to avoid damage to freedom of expression.

Update (10 May 2010): - I've now been informed that after being alerted to these issues the original trial judge accepted that there was a flaw in the proceedings, declared a mistrial and reentered the matter. Last week, on the matter again being listed in Dundalk Judge Hamill considered this point and ruled that the charge was inappropriate.

Tuesday, July 08, 2008

Free books on technology and the law - A reader's guide

A 19th Century Irish judge (Sir James Mathew) once said that "In England, justice is open to all – like the Ritz Hotel." Unfortunately, litigation has not become much cheaper in the meantime. But other aspects of the law have. In particular, there has been an explosion in the number of high quality books on law and technology available for free download - both free as in beer and free as in speech. Here are some of my favourites.

It's almost obligatory to start with Lawrence Lessig, who was one of the first lawyers to make his work freely available and was instrumental in setting up the Creative Commons movement to enable others to do likewise. Three of his books are available:
Free Culture is one of the more influential books on the use and abuse of intellectual property law and at the same time manages to be both readable and entertaining.
Code 2.0 scarcely needs an introduction. Lessig's analysis of how code can be used as a form of regulation, and the risks this presents, was an instant classic when first published in 2000 and this second edition confirms that many of his insights have become increasingly relevant in the meantime.

The Future of Ideas is another classic - covering much of the same ground as Code and Free Culture, it looks at what he calls the corruption of the values of the early internet, an internet counterrevolution which threatens to stifle creativity and innovation.
Building squarely on Lessig's work, Johnathan Zittrain's The Future of the Internet - And How to Stop It is a perceptive discussion of how the innovation and freedom permitted by an open internet is under threat from increasing restrictions both on the network itself and the devices which connect to it.

On a similar topic is Matthias Klang's doctoral dissertation, Disruptive Technology. He argues that new technologies "disrupt the, previously established, social norms that make large parts of our democratic social interaction" while simultaneously the regulation of new technologies may undermine democratic participation, for example by imposing contractual restrictions on speech online which would not apply offline.
The Wealth of Networks by Yochai Benkler covers some of the same ground, but has a different focus in arguing that a networked environment and a growth in the sharing of information (such as via Creative Commons licences) brings about deep, structural changes in society - notably a shift from markets to non-market social behaviour - which face resistance from a variety of entrenched incumbents who stand to lose out.

Turning specifically to privacy, Daniel Solove's The Future of Reputation is a superb look at the interaction of privacy, reputation and freedom of expression on the Internet, and takes a broad view of how social mechanisms such as shaming might develop online.
John Logie's Peers, Pirates and Persuasion is an interesting and enjoyable look by a non-lawyer at the growth of a maximalist copyright system and specifically the rhetoric used by each side in the "filesharing wars". (That link appears to be unreliable, but the book is also available on Scribd.)
Perspectives on Free and Open Source Software, edited by Joseph Feller and others, is a collection of essays covering a wide range of issues such as: the motivation of contributors to open source software, the security issues it presents, the business model underlying it, the challenge of open source for the legal system and the application of open source / free software principles in the world of science. This remains possibly the best introduction for anyone (lawyer or not) curious about free / open source software.

The OSCE Media Freedom Internet Cookbook is another must read. This collection of essays by various authors offers some very interesting perspectives on the challenges of reconciling individual and media freedom with regulation of the internet while also covering a variety of topics from "hate speech" to internet hotlines to education for media literacy. In particular, Gus Hosein's piece on the Open Society and the Internet is a perceptive look at the promises of and threats to internet freedom.
Last, but certainly not least, is a collection of essays by the individual who started many of these debates about opening software, knowledge and society. Free Software, Free Society: Selected Essays of Richard M. Stallman includes classic pieces such as "The right to read" and "Why software should be free".

Sunday, July 06, 2008

Ireland's first case on the legality of screen scraping?

The Sunday Business post reports that Ryanair has started proceedings in the High Court against Bravofly seeking to prevent it from screen-scraping the Ryanair site in order to provide users with a portal through which they can compare fares across airlines.

Ryanair have been trying to block screen scrapers for some time now. Most recently they were rapped on the knuckles by the ASA for placing advertisements telling consumers that:

This seems to be the first time, though, that they have resorted to legal proceedings and the first time that the Irish courts will consider the legality of screen scraping. From the report in the Sunday Business Post it would seem that Ryanair is primarily relying on the restrictions imposed by its terms of use, but presumably we'll see argument as to whether screen scraping violates their rights under the Database Directive (though whether this claim will stand up in light of the British Horseracing Board caselaw is another matter). OUT-LAW have some analysis of the uncertain position under English law, while this article in the Loyola Consumer Law Review gives an up to date summary of the position under US law.

Update 8.07.08 - The Irish Independent and Irish Times have more details. From the Irish Times:
Ryanair has claimed the alleged "screen-scraping" activities of Bravofly breach provisions of the Trademarks Act and the Copyright and Related Rights Act, amount to "passing off" and also breach the conditions for accessing the Ryanair website.

It claims that Bravofly, without permission from Ryanair, has offered detailed information on Ryanair's flight services and had also used Ryanair's name and harp device logo in presenting that information.

It also claims that Bravofly has established and maintains hypertext links from its websites to the Ryanair website, without Ryanair's authorisation.

Ryanair claims it had written to Bravofly asking for undertakings that the screen-scraping activities would cease but no such undertakings had been received.

Ryanair is seeking court orders restraining the alleged activities and also wants damages, including exemplary damages, and/or an account of profits for alleged negligence and/or wrongful interference with Ryanair's economic interests and contractual relations.

The airline contends the matter is of real commercial significance as its website is at the heart of its marketing and sales strategy and some 98 per cent of its flight bookings are transacted via the website. Any action which wrongfully impinges on the effectiveness of the Ryanair website has an impact on sales and marketing activities and the attractiveness of the website as a platform for the advertising and sale of third-party goods and services, it says. It claims the activities of Bravofly are diverting potential business from Ryanair.