The new Irish ban on social media posts from court

I have an opinion piece in the Irish Independent on the new practice direction restricting social media posts from the courtroom. Here's an excerpt:

In 2011, the English courts introduced rules preventing anyone other than journalists or lawyers from posting to social media in the courtroom; the new Irish rules are largely identical, and seem to have been prompted now by judicial concern at both the Jobstown trial and the Belfast rugby rape trial. The #JobstownNotGuilty and #IBelieveHer hashtags show a growing popular willingness to second-guess the judicial process and this ban can be seen as a direct response.

There are certainly good reasons for banning live tweeting in some cases, particularly in criminal trials where much takes place in the absence of the jury.

However, the speech by the Chief Justice did not make the case for the blanket ban which was introduced. All the examples of abuse he gave related to criminal trials - there is no obvious reason why civil trials, which normally do not have a jury, should be treated in the same way. This is equally true of appeal courts, which hear legal argument rather than evidence, and in the UK the Supreme Court allows any person attending a hearing to live tweet except in special circumstances.

The restriction to "bona fide members of the news media profession" is also problematic. In his speech, the Chief Justice equated "hobby journalists" with "the single contrarian in a basement".

However this disregards a number of Irish and European judgments stressing the high constitutional value of citizen journalism; restricting live coverage to those who can produce traditional media credentials has the merit of administrative convenience but will limit many who could provide useful and informed coverage of proceedings.

Full text of the article.

PPS numbers: internet saviours?

Bank Holiday Mondays are quiet news days, making them a good time to get any old nonsense into the newspaper. Today is no exception as the Irish Times appears to have taken the opportunity for a special edition of breathless internet fear-mongering.

The prime example is this piece which makes the literally incredible assertion that "The PPS number provides the Irish Government with an opportunity to dramatically improve the safety of children and young people online." (Following on, no doubt, from the success of PPS numbers in the delivery of water services.) In effect, the author is demanding internet identity cards for the wider population. This is an astonishingly bad idea, as anybody with even a passing familiarity with the Korean internet ID fiasco should know.

So why is the author pushing this? The byline reveals that the author is "founder and CEO of TrustElevate, a technology products and services company that specialises in regulatory, policy and compliance online." But what the byline doesn't say is that her firm is selling the technology which the article promotes. According to its own site, "Trust Elevate is a UK-based technology solutions and advisory company. Our focus is on identity, privacy, security and safety from the perspectives of reputational compliance and commercial opportunities."

In short, the author is shilling her own service under the guise of an impartial opinion piece. This is bad enough in itself, but more fundamentally it is a distraction from what really needs to be done to protect children online.

At the most basic level, gardaí are dramatically under-resourced in dealing with the internet. The 2014 Garda Inspectorate report revealed there have been up to four year delays in analysing seized computers; that the Paedophile Investigation Unit had one (!) computer to receive and download evidence; that 40% of Garda stations are not networked and have no access to PULSE or internal email; that evidence cannot be shared electronically; and that even in networked stations many gardaí have no access to social media or external email.

One might expect that those genuinely interested in child welfare would address these basic points first. But where's the profit in that?


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Some excerpts from the Garda Inspectorate Report - emphasis mine:

The current Garda Síochána IT system restricts the sending of evidence electronically, resulting in investigators having to travel to Dublin to view evidence. PIU only have access to one standalone computer to receive and download evidence, as they are unable to use PULSE. This is a fundamental tool for investigation of these crimes. When evidence arrives, it can take days to download information and this removes the availability of the computer to be used by investigators coming to the unit to view evidence for other cases. PIU gave an example where one case had over 8,000 videos.

Another problem area is the restriction placed on districts accessing social media sites. As a result, the PIU is swamped with requests from districts for help in cases under investigation. Since 2001, the unit has used a paper system for managing investigations and would like to move to an electronic system. Internally, the PIU uses an electronic spread sheet to monitor cases. There is a concern that two investigators could potentially be looking at the same suspect, without knowing that another garda is also investigating a crime against the same suspect. Like the SOMU, all PIU staff work on the same roster and again are all off-duty at the same time.

The delay in obtaining evidence from analysis of computers has contributed to a situation where no PIU investigation case file has been sent to the DPP for directions in the last four years of operation.

A consistent theme throughout the inspection of national and district intelligence units was that outdated IT equipment blocked them from accessing or viewing evidence about a crime. The Inspectorate was informed that the National Intelligence Unit is working on outdated software and is unable to load PDF documents and to view photographs. CIOs in particular experience daily challenges in accessing the necessary IT applications and equipment to perform their role effectively. CIOs often use personal laptops and computers to view CCTV footage, to download stills and to turn those stills into briefing documents and bulletins. This represents a risk of breaching security of intelligence data, but their motive is to ensure that intelligence is provided to local gardaí.

The access of gardaí to external e-mail was very inconsistent across the seven divisions. Some members stated that they had no external e-mail access and other gardaí explained that if you apply for access then it will be given. Many victims would like the option to use e-mail to communicate directly with the garda dealing with their case and it would ensure that the member actually received their message.

"Homophobe" brings Ireland's first "right to be forgotten" court case

A fascinating story in today's Irish Times details what seems to be the first court case in Ireland following the Google Spain ruling. However a less sympathetic plaintiff would be hard to find. The case is being brought by a Dublin man, Mark Savage of Lios Cian, Swords, who ran in the 2014 local elections on a platform which included reference to "Gay Perverts cavorting in flagrante on the beach in broad daylight". His election literature speaks for itself (click to enlarge):

Unsurprisingly, he was not elected. He now apparently objects to a Reddit thread characterising him as "Mark Savage - North County Dublin's homophobic candidate". Following an unsuccessful request to Google to have that thread deindexed, he complained to the Data Protection Commissioner who refused to order that Google do so. He has now appealed against that decision to the Circuit Court. I look forward to a full hearing, though I doubt it will be over in his optimistic estimate of two hours and I doubt he will be successful in his claim that Google should censor discussion of his views as publicly stated in an election campaign. If anything, this appears to be a complaint of defamation dressed up as a data protection matter.

Edited to add: Incidentally, the case also highlights an important structural point - chances are that most of the RTBF cases which become public will involve plaintiffs with relatively weak claims. The individuals with strong arguments to be deindexed will probably succeed in private at the point of initial contact with Google or else before the data protection authority. The only cases to be subject to public scrutiny before the courts will be those where both of the initial decision makers have found that the request should not be granted.

Mixed internet messages from the Indian Supreme Court

The Indian Supreme Court today gave a landmark decision on the Information Technology Act 2000. Most media coverage has focused on the fact that the court struck down section 66A - the offensive messages provision - finding that it was unconstitutionally vague and would have a chilling effect on freedom of expression. This is significant for the ongoing Irish debate on "cyberbullying". The Irish offence of sending offensive messages by telephone is extremely similar to the Indian s.66A offence and there have been calls to extend it to the internet. Today's judgment suggests that this would be unconstitutional. As the Indian Supreme Court stated:

[The English cases] illustrate how judicially trained minds would find a person guilty or  not guilty depending upon the Judge’s notion of what is “grossly offensive” or “menacing”.  In Collins’ case, both the Leicestershire Justices and two Judges of the Queen’s Bench would have acquitted Collins whereas the House of Lords convicted him.  Similarly, in the Chambers case, the Crown Court would have convicted Chambers whereas the Queen’s Bench acquitted him. If  judicially trained minds can come to diametrically opposite conclusions on the same set of facts it is obvious that expressions such as “grossly offensive” or  “menacing”  are  so  vague  that  there  is  no  manageable standard by which a person can be said to have committed an offence or not to have committed an offence. Quite obviously, a prospective offender of Section 66A and the authorities who are to  enforce  Section  66A  have  absolutely  no  manageable standard by which  to  book a  person for an offence under Section 66A.

There's been less attention to the court's disappointing findings upholding the section 69A government power to order the blocking of websites where "necessary or expedient so to do, in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of  any cognizable offence relating to above". According to the court, the procedural safeguards established around blocking were sufficient to protect freedom of expression, despite the fact that blocking is ordered by the government itself rather than an independent body:

It will be noticed that Section 69A unlike Section 66A is a narrowly drawn provision with several  safeguards. First  and foremost,  blocking can only be resorted to where the Central  Government is satisfied that it is necessary so to do. Secondly, such necessity is relatable only to  some of the subjects set out in Article 19(2). Thirdly, reasons have to be recorded in writing in such blocking order so that they may be assailed in a writ petition under Article 226 of the Constitution.

The  Rules  further  provide  for a  hearing  before  the Committee set up - which Committee then looks into whether or not it is necessary to block such information. It is only when the Committee finds that there is such a necessity that a blocking order is made. It is also clear from an examination of Rule 8 that it  is  not  merely  the intermediary  who  may  be  heard. If  the “person” i.e. the originator  is identified he is also to be heard before a blocking order is passed. Above all, it is only after these procedural safeguards are met  that blocking orders are made and in case there is a certified copy of a court order, only then can such blocking order also be made.

Still, it is heartening to see that the Indian Supreme Court apparently considered it essential that both the intermediary and also the "originator" (the person who posts material) should be given the chance to be heard before a blocking order is made. In too many national schemes the only notice - if any - is to the host or social network, not the user.

What would Turkey like to hide from its citizens?

Internet censorship in Turkey is a prime example of why democracies should not attempt to filter the internet. I've blogged before about the blocking of Richard Dawkin's website by the Turkish authorities so I was fascinated to learn that a full list of sites which have been blocked by Turkey is available. The information has been compiled by EngelliWeb.com which identifies 31,694 sites as having been blocked, roughly doubled from last year. You can also view all blocked sites as a single page.

Highlights of the blocking list? In addition to Kurdish news sites, it includes the entirety of:

Blogger
Blogspot
Dailymotion
Google Groups
Google Sites
Shoutcast
Ustream.tv
Vimeo
Wordpress
YouTube

One important caveat - not everything on the list is currently blocked. Turkey has flipflopped on many of these sites with on again/off again bans at different times for different reasons. Some sites - such as YouTube - have also been unblocked after caving in to Turkish government pressure and agreeing to censor for Turkish users.

More on Turkish blocking from the excellent Reporters Without Borders site. The Guardian has a recent piece on how Turkish internet users are getting around this censorship.

Testifying before the Oireachtas Social Media Hearings

I appeared today along with my colleague Fergal Crehan on behalf of Digital Rights Ireland before the Oireachtas Joint Committee on Transport and Communications which is currently holding a series of hearings on "Social Media Ethics and Regulation". There's a good summary of the proceedings in the Irish Times but the masochistic amongst you can watch the whole thing here. Our slides and Fergal's very comprehensive written submissions are embedded below.

I won't rehash here the substance of the discussion, but I should say that we got a very fair hearing from the Committee whose members - following four separate sessions on the topic - are now very familiar with the issues (previous sessions: 1|2|3). They were quite receptive to the argument that greater resources are needed for the Data Protection Commissioner and the Garda Computer Crime Investigation Unit, and I suspect that they were as shocked as I was to discover that there is currently a three year backlog for that unit to investigate child pornography cases.

The hearings as a whole were also useful in highlighting current practice in sites such as YouTube and shedding some light on the otherwise rather opaque Office for Internet Safety in the Department of Justice. I was disappointed though that there was no evidence from domestic social networking sites such as Boards.ie - the larger international players such as Facebook, Twitter and YouTube operate in a very different environment, not least in the resources they have, and it would be unfortunate if the Committee were given the impression that they were typical of social media sites generally. I don't know whether the domestic absence is because local sites didn't seek to be heard, or whether they weren't given time - but either way it seems to me that these sites would benefit from joining forces and possibly setting up a group to represent their views. In any event I look forward to seeing the Committee's report.

Social Media and the Law: Presentation to Joint Committee on Transport and Communications

Written submissions on abuse in social media

Irish court allows reporters into family law case (but bars tweeting)

The High Court gave a landmark judgment on surrogacy earlier today, holding that the biological mother of twins born to a surrogate (her sister) was entitled to be recorded as their mother on their birth certificates. I'll leave the family law side of this to the experts, but I was struck by how the court handled the issue of media coverage. In particular, in exercising its discretion to allow certain designated journalists to report on the proceedings the court did so subject to a number of conditions one of which was that: "no contemporaneous social media reporting e.g. by Twitter shall be carried out by the designated reporters."

This seems to be the first time that an Irish court has positively restricted the tweeting or live blogging of court proceedings, though that's not to say that the issue hasn't been considered.

In 2009 Abigail Rieley - then working as a court reporter - could still say that the issue hadn't yet reached the judicial consciousness. In 2011 it was reported that a judicial committee would consider the issues of jurors' use of the internet and might also consider the issue of courtroom reporting on social media. (I'm not aware that anything public ever emerged from this - if you know better please let me know.) Still again, in 2012 the media relations advisor to the Courts Service published an interesting article on social media and the courts (PDF) which amongst other things suggested that there was a need for judicial guidance along the lines of the current English rules regarding tweeting from court.

Meanwhile, despite these concerns the use of Twitter in court has simply become a part of day to day reality. Today's judgment is the first time it has butted up against judicial resistance - and that only in the particularly difficult and private context of a family law matter. I suspect, though, that it won't be the last.

Legislation is not the answer to abuse on social media

I had an opinion piece in last week's Sunday Business Post in response to the latest Irish panic about the internet. As it's behind a paywall the full text (with added links) is below:
 
Legislation is not the answer to abuse on social media

Earlier this week the Chinese government passed a measure requiring all internet users to register their real names. The official line has been that the law is to "safeguard the lawful rights and interests of citizens" and "social and public interests", but Chinese bloggers have been in no doubt that it is a response to growing use of the internet to expose official abuses. It's disappointing, therefore, that some within the Irish government seem to be considering a similar approach.

The background is the suicide of TD Shane McEntee. Some members of his family and politicians have said that "abuse" directed towards him on social media over cuts to the respite care grant had caused him great stress. Social media abuse has also been linked to other recent suicides, though politicians need to be careful not to over-simplify the complex causes behind someone deciding to take their own life.

A number of politicians have now called for regulation of social media and the Oireachtas Committee on Transport and Communications has scheduled a special meeting for January to look into the issue with its chairman, Tom Hayes, saying that "people have to be made accountable for what they are saying".

Kneejerk calls for "regulation" ignore the reality that social media is already regulated in the sense that the law applies online as it does offline. Where defamatory comments are made online then a defamation action can be brought in the same way as though those comments were made in a telephone call or letter.

The criminal law applies in the same way --- in particular, the offence of harassment contrary to the Non-Fatal Offences Against the Person Act 1997 has already been used to prosecute online activity. In each case, whether civil or criminal, there are already mechanisms to permit the identification of internet users accused of serious wrongdoing.

Given these existing laws, when politicians call for people to be made "accountable" then either they are unaware of the current mechanisms to deal with breaches of the law or they have something else in mind, some new form of regulation which would restrict speech online to a greater extent than offline.

There are, so far, no concrete proposals on the table, but there is already hostility among Irish politicians to the ability which the internet gives users to speak freely. Ruairi Quinn earlier this year, for example, described the internet as "a playground for anonymous back-stabbers". Consequently, one particular issue that is likely to be floated is that of requiring some form of real name registration for internet users.

The proponents of real name laws invariably make the same point -- that online discussions would be more civil if individuals spoke under their own names. There is a superficial appeal to this argument even if politicians themselves show that the contrary is often the case. Our politicians are never slow to attack each other in the most abusive of ways, but this does not attract the same political condemnation as similar remarks made on social media by ordinary citizens.

There are, however, very fundamental problems with real name laws. Fortunately there is international experience to show why this is. In 2007, South Korea adopted a real name verification law under which websites with more than 100,000 visitors a day were required to record the full identity of visitors posting comments using their resident registration number --- the equivalent to the Irish PPS number. Though users could still use pseudonyms on these sites, the theory was that their true identities could be revealed in the case of wrongdoing.

In a striking parallel with the current Irish situation, this law was partly prompted by suicides of celebrities said to have been the victims of cyber-bullying.

How did this experiment fare? In short, it was a disaster. It was trivially easy to evade --- users could simply move to overseas websites, making it harder rather than easier to enforce the law, while also harming the local internet industry.

It created multiple poorly-secured databases of user identities, which led to South Korea becoming one of the countries most affected by privacy breaches and identity theft.

Most importantly, it led to a chilling effect whereby citizens were deterred from speaking out online for fear of retribution. In 2011, the government announced plans to abandon the law and in August of this year the Constitutional Court unanimously ruled it to be unconstitutional, holding that it disproportionately restricted freedom of expression and did not achieve any public benefit.

In particular, the court found that "there is no evidence that the real name system has significantly reduced the defamatory or otherwise wrongful posting of messages".

The journalist HL Mencken is credited with the expression: "For every complex problem, there is an answer that is clear, simple--- and wrong." In the case of social media, real name legislation is precisely that. True, there are wider issues with civility in social media --- just as there are with civility in public discourse generally.

It also doesn't help that Irish politicians have yet to come to terms with how social media amplifies public opinion, debate and interaction, so that they can sometimes experience the active citizenry which it enables as a relentless flow of criticism.

These, however, are overwhelmingly issues of manners and social norms --- not matters for legislation. The few cases which are genuinely defamatory or criminal can be referred to the legal process, but the remainder are best dealt with by continued conversation, education and self-moderation by online communities.

Irish newspapers have some curious views about search engines

The Irish newspaper industry seems to have chosen today for a bout of collective hyperbole about search engines. Here's what the Examiner had to say:

Work generated through effort, skill, imagination, professionalism, and usually considerable capital investment, is pirated by businesses with no connection to the creative process as a means to win revenue without risk or outlay. This process is hardly different to what we more commonly describe as theft. The scale of the piracy is astounding. In 2010, while every media company in the country shed jobs and cut costs to the bone, a single search engine operating in Ireland offered around 150,000 newspaper articles that cost publishers an estimated €46.5m to generate. Last year that site offered more than 350,000 articles at a cost equivalent to more than €110m. And all without paying one cent to those who created those articles.

There's more in the same vein from the Irish Times and the Independent.

Incredible, isn't it, that the newspapers are powerless to defend themselves against this "theft" and "piracy". Oh, wait - they're not. Instead, they've deliberately chosen to allow in search engines and to profit from the traffic which they generate.

Here's a non-technical explanation. You don't have to allow your site to be indexed by search engines. If you don't want your site to appear on Google you can use a simple file, known as robots.txt, which tells search engines what they can and can't do. The Examiner has one, as does the Irish Times and the Independent. So do they tell these "pirates" and "thieves" to keep out? Absolutely not. In fact, all three provide sitemaps for search engines which summarise their sites and make them easier to index, while both the Irish Times and the Independent provide specific instructions for the "Mediapartners-Google" searcher. Why do they do this? Because of a business decision that they benefit from the readership which added visibility in search engines generates.

The tone of the piece in the Examiner is entirely deceptive: far from being the helpless victim of "theft" and "piracy", the newspaper has chosen, for its own commercial advantage, to allow its site to be indexed and to benefit from the resulting visitors. Should the newspaper object, it is free to opt-out at any point. But it is shoddy work to misrepresent the position to its readers in this way.

High Court: Bloggers can benefit from journalistic privilege

There's quite a lot to digest in the recent decision of Hogan J. in Cornec v. Morrice & Ors. Most of the judgment deals with wider issues in the protection of journalists' sources, and unsurprisingly the media coverage so far tends to focus on this aspect. But reading the judgment, I was struck by the way in which it considered whether non-traditional media could also benefit from similar protections. In particular, it appears to be the first Irish judgment to consider the position of bloggers.

In this case orders were sought to compel two individuals - Nicola Tallant and Mike Garde - to testify for the purposes of US civil proceedings. Both objected to the orders on various grounds, including the argument that requiring their testimony would reveal both their sources and the information provided by these sources, contrary to their journalistic privilege recognised by Irish law. ("Journalistic privilege" is used here as shorthand - para. 42 of the judgment makes it clear that strictly speaking there is no such thing. Nevertheless it is a useful phrase to capture the rights which journalists may have in certain situations.)

In the case of Nicola Tallant, an investigative reporter with the Sunday World, there was no difficulty in applying the concept of journalistic privilege. The position of Mike Garde was rather more ambiguous. As the court put it, he was "not a journalist in the strict sense of the term". Instead, he was a director of Dialogue Ireland - an independent organisation working with people who become caught up in cults or fringe religions - and regularly appeared in the media and blogged about issues surrounding cults. Despite this, however, Hogan J. had no hesitation in finding that he should also benefit from a similar protection, holding that:

While Mr. Garde is not a journalist in the strict sense of the term, it is clear from that his activities involve the chronicling of the activities of religious cults. Part of the problem here is that the traditional distinction between journalists and laypeople has broken down in recent decades, not least with the rise of social media. It is probably not necessary here to discuss questions such as whether the casual participant on an internet discussion site could invoke Goodwin-style privileges, although the issue may not be altogether far removed from the facts of this case.

Yet Mr. Garde’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. Since Mr. Garde’s activities fall squarely within the education of public opinion, there is a high constitutional value in ensuring that his right to voice these views in relation to the actions of religious cults is protected. It does not require much imagination to accept that critical information in relation to the actions of those bodies would dry up if Mr. Garde could be compelled to reveal this information, whether in the course of litigation or otherwise. It is obvious from the very text of Article 40.6.1 that the right to educate (and influence) public opinion is at the very heart of the rightful liberty of expression. That rightful liberty would be compromised – perhaps even completely jeopardised – if disclosure of sources and discussions with sources could readily be compelled through litigation. [Emphasis added]

This strikes me as a very important ruling - by explicitly equating blogs and other new media forms with the traditional "organs of public opinion" protected by the Constitution it may well strengthen the position of internet authors not just in relation to the protection of sources but also in other areas such as defamation.

I thought I was writing a blog; turns out I'm a threat to humanity

We need to address the threat to humanity posed by the tsunami of unverifiable data, opinion, libel and vulgar abuse in new media. I know all the stuff about it being a tool of freedom and democracy, and I also know it has the capacity to destroy civil society and cause unimaginable suffering. Governments have a regulatory function in this regard, and they’re walking away from it because they’re afraid of appearing to be repressive.

Ironically today's speech by Alan Crosbie at a conference on media diversity is itself full of such unverifiable data and opinion. For a man who makes much of the credibility and reliability of newspapers, it is unfortunate that he repeats the long since debunked claim that:

Those English riots, for example, were a new media generated phenomenon, a product of information going from pillar to post without mediation without being edited, without a quality check.

Also worth noting is the cognitive dissonance between page 3 (complaining about political interference in RTE) and page 4 (seeking licence fee payments for newspapers also). Read the whole thing for an insight into the views of the man behind a substantial chunk of the Irish media industry.

"The law should be predictable as to what is mandated and what is forbidden"

One of the strongest arguments against the proposed copyright statutory instrument is that it is so vague as to make it impossible to predict what it might require of internet intermediaries. The proposal is entirely silent in relation to the most basic issues where one might expect clarity. What type of injunction might be granted? Site blocking? Three strikes? Deep packet inspection? Hash value blocking? What types of intermediaries might be affected - ISPs, search engines, hosting providers, cloud computing providers? Who will have to pay the legal costs of applications for injunctions? Who will have to pay the ongoing cost of implementing any injunction?

Crucially, this vagueness is highlighted by comments of Charleton J., the very High Court judge whose ruling in EMI v. UPC has been relied upon by Sean Sherlock as justification for this statutory instrument. However, when examined closely neither his judgment in that case nor his later extrajudicial pronouncements support this claim. In particular, in a recent speech to the Fordham Intellectual Property Conference, he said:

Legislation such as the [UK Digital Economy] Act of 2010, has at least the predictability of express statement as to the objects to be achieved. In respect of each of the possible solutions of diversion, interruption, warning and cut-off, the British have OfCom looking at the appropriate technical machinery with which to achieve these ends. When this machinery is approved, then, in those circumstances, any court faced with these difficult cases will be in a position to fairly, if not precisely, predict what they can use as a technical solution with a view to granting or refusing to grant injunctions.

This strongly accords with the European law principle that the law should be predictable as to what is mandated and what is forbidden and enables a judge to also know what is expected in the judicial sphere in particular circumstances. As I said in another part of the judgment in EMI v. UPC, if any judge were merely to act on the basis of what the Court felt was right, without having a legislative basis, the Court would be putting itself back in the position of judges in the late 19th and 20th century who used the tort of conspiracy and the remedy of an injunction against the trade union movement and thereby caused public controversy, rendered uncertain the concept of the rule of law and undermined their own authority.

It may also be well for the judicial mind to observe that the separation of powers is a definite guiding principle against doing what might seem desirable, but which is not provided for in legislation.

"The law should be predictable as to what is mandated and what is forbidden and enables a judge to also know what is expected in the judicial sphere in particular circumstances". Can the DJEI honestly claim that their proposed statutory instrument meets these criteria?

Irish copyright regulations unnecessary

Senior Counsel John Gordon has a clear explanation as to why Sean Sherlock's proposed copyright regulations are unnecessary in today's Sunday Business Post. I've taken the liberty of reproducing the entire piece here:

Simplistic Internet regulations court trouble

Amendments to copyright law for online infringements should be dealt with through primary legislation, writes John Gordon

There has been much debate in recent weeks about a draft statutory instrument (SI) that minister of state Sean Sherlock is about to bring into Irish law to deal with online copyright infringement. The SI is intended to fulfil Ireland's EU obligations by facilitating in­junctions against internet ser­vice providers (ISPs). This follows the decision of Justice Charleton in 2010 in the unsuc­cessful action taken by Irish recording companies, EMI, Sony, Universal, Warner and Wea against UPC, in which I appeared on behalf of the de­fendant.

These recording companies last month issued proceedings against the state on the basis that it is liable to pay compen­sation for its failure to provide them with a remedy to fight on­line copyright infringement. This raises the question of how the state has failed in its obliga­tions.

In Minister Sherlock's press release on January 26, accom­panying a draft of the proposed SI, it was stated that the obliga­tions contained in the relevant directive were clear.

Article 8(3) of the directive on the harmonisation of cer­tain aspects of copyright and related rights in the informa­tion society, (2001/29/EC), which is referred to in the draft SI, provides that member states shall ensure copyright owners are in a position to apply for in­junctions against intermedi­aries whose services are used by others to infringe copyright. The directive states that the conditions and modalities for such injunctions are at the dis­cretion of member states.

Having taken into account these provisions, the state did in fact legislate to provide a re­medy to rightsholders in re­spect of copyright infringements under the notify and takedown provisions of Section 40(4) of the Copyright and Related Rights Act 2000. In addition, rightsholders have been granted Norwich Pharmacal Orders under the common law, which obliges an ISP to identify subscribers who are shown to have infringed copyright on the ISPs network so the rightsholders can pursue such infringers directly. Such relief has historically been ob­tained by the recording com­panies that are now suing the state.

However, they consider it too expensive and ineffective. So what is now being sought is not the right to a remedy but an additional remedy under Irish law. There is no clear and un­ambiguous obligation on the state to implement this SI.

In the UPC case the reliefs sought included the possible implementation by ISPs of fil­tering and blocking technology on their network, and of a graduated response system, whereby after three warnings a person's internet subscrip­tion is suspended or termi­nated and/or the blocking of subscriber access by ISPs to certain websites alleged to fa­cilitate copyright infringe­ment.

A recent decision of the Court of Justice of the EU (Case C-70/10 SABAM) has confirmed, since the UPC case, that it is unlawful under EU law for an ISP to be or­dered to implement blocking and filtering technology on its network to seek out copyright infringements.

In addition, Eircom's imple­mentation of the graduated re­sponse, or three strikes, system, which is the subject of specific legislation in certain member states, is currently being challenged by the Data Protection Commissioner be­fore the Irish Courts.

Given the progress of legis­lative and judicial thought in the EU, it is now even more clear that the type of remedy which rightsholders seem to expect as a result of the proposed SI will not be available to them.

As a result, the state cannot be liable to pay compensation for failing to provide these re­medies under Irish law. The generality of the lan­guage in the proposed SI can only lead to confusion as to the precise remedies that can lawfully be obtained in the light of other express provisions of EU law. Such EU law is intended to cut down on the scope of the remedies available against ISPs.

Judges will have to approach any new legislation by refer­ence to EU law and jurispru­dence, which must take precedence over Irish domestic law where there is any incon­sistency between the two.

If this whole debate is a mat­ter of empowering the Irish courts to order the blocking of websites, as many commenta­tors have stated in recent weeks and months, then the legisla­tion should specifically address this and set out the relevant cri­teria in a manner consistent with EU law. The proposed SI introduces unwelcome uncer­tainty and will inevitably lead to further litigation.

Further, it is noteworthy that the Programme for Govern­ment stated that legislation in the area of online copyright infringement needed to be tackled — but went on to say that "the situation can no long­er be tolerated where Irish min­isters enact EU legislation by statutory instrument", where "the checks and balances of parliamentary democracy are bypassed". The proposed SI ignores this statement, in that it seeks, without the benefit of the normal legislative process, to amend the Copyright and Related Rights Act 2000, which itself was the subject of lengthy debate in both houses of the Oireachtas at the time.

Implementing this alar­mingly simplistic SI will unfor­tunately not solve the problem of striking a fair balance be­tween the interests of all in­volved, be they rightsholders, ISPs or internet users, but rather leave it to be teased out in the courts. Time should be taken to properly consider what changes need to be made to our copyright laws by means of primary legislation. In this context, assistance can be ob­tained from considering simi­lar debates currently taking place in many other jurisdic­tions including the United States of America.

John Gordon is a senior counsel

It's worth noting, although not explicitly stated, that the effect of this opinion is the proposed statutory instrument would be ultra vires the power of the Minister and therefore would be struck down if challenged before the High Court. To date the government talking points have been to the effect that it would be "prudent" to introduce the SI. John Gordon's analysis shows why this is flawed - unless the SI is required by EU law then the Minister has no power to introduce it.

Copyright proposals block innovation and free expression

I have an opinion piece in today's Irish Times arguing against current government proposals which would allow internet blocking and more. Here's an excerpt:

As currently drafted, the statutory instrument provides that the High Court may grant an injunction against an internet intermediary who is entirely innocent of any wrongdoing – but does not specify even the most basic details regarding how this power might be exercised.

What type of injunction might be granted? On what criteria? Against what types of intermediary – internet service providers, discussion forums, search engines, social networking sites, video hosting sites? Who will bear the costs of these injunctions? Who will be responsible if, as often happens, an unrelated website is wrongfully blocked?

This lack of detail makes it impossible to predict how this law might be applied, and means that clarification will come only after repeated and expensive trips to the High Court.

The Internet Service Providers Association of Ireland (whose members include Google) has opposed the legislation, noting the proposal creates “business uncertainty for those running or considering establishing internet services from Ireland” in a way which may have “drastic consequences” for them: in short, it will act as a deterrent to the next generation of Irish internet businesses which may relocate to warmer legal climes. Significantly, the Department of Enterprise has not produced a Regulatory Impact Assessment of the measure.

Full text

Ireland's SOPA to permit three strikes; TDs asked to debate something they haven't seen

It's been a peculiar day in relation to Ireland's SOPA.

First of all, junior minister Sean Sherlock said on lunchtime radio that he intends to hold an emergency Dáil debate on the law - within 24 hours no less! - and is happy to meet with me and other representatives of StopSOPAIreland.com to discuss it. While I'm glad to see that he's softened his position, it's remarkable that he still hasn't published the text of his proposals and doesn't show any signs of doing so. Consequently, I'm not sure what there is to discuss or what he expects the Dáil to debate. Asking TDs to have a debate in the dark about a document they haven't seen doesn't show much respect for Parliament.

But let's leave that aside for the moment. Assume TDs are given the proposal at some point tomorrow. Pretend that despite the short notice they might have sufficient time to digest a complex area of law. Ignore the fact that citizens will be prejudiced by being denied the chance to adequately brief TDs. The point remains - a hurried debate on its own isn't sufficient.

Normally laws are made through a measured process where both the Dáil and the Seanad are given adequate time to scrutinise a Bill, identify weaknesses and pass amendments. It's clear that what Sean Sherlock proposes won't enable them to do that. Instead, TDs will be left impotent with the Dáil being treated as a talking shop, unable to make any changes to a document drafted behind closed doors.

(Incidentally, it also contradicts the minister's own Programme for Government which states that "The situation can no longer be tolerated where Irish Ministers enact EU legislation by statutory instrument. The checks and balances of parliamentary democracy are by-passed." I couldn't agree more.)

The need for greater transparency is obvious from a second remarkable development today. In a briefing note circulated to TDs and senators, Séan Sherlock has confirmed that his proposals go even further than we had thought, and respond to the music industry demands in the EMI v. UPC case:

"to prevent infringement of the record companies’ sound recording copyright, through... internet “peer-to-peer” services, possibly involving a 'three strikes and you’re out' scenario. This is where the ISP sends three warnings of increasing severity and if the infringement continues, discontinues access to the Internet. It is sometimes referred to as a 'graduated response'."

In short, the proposals aren't simply about website blocking, but could also allow courts to require ISPs to introduce three strikes systems. It's surprising and disappointing that this is happening now - after the Data Protection Commissioner has shown the unreliability of these systems by taking proceedings against Eircom for wrongly threatening innocent users with disconnection - and truly remarkable that the department seems content with the possibility for such systems to be introduced at the discretion of judges with no legislative controls.

If you're worried by these proposals and want to see an open and transparent discussion take place then please support the campaign at StopSOPAIreland.com.

Anonymous attacks on Ireland will hurt, not help the case against blocking

My heart sank when I saw this tweet a few minutes ago:

Ireland has angered the hive, we will be reporting all attacks through this account | #OpIreland #OpMegaUpload

— Anonymous (@YourAnonNews) January 24, 2012

Leave aside, for a moment, the inconvenience and disruption this will cause people trying to make use of government sites, the cost of responding and the controversial question whether denial of service attacks are legitimate as a type of civil disobedience. Quite apart from all these points, the action will do nothing to advance the Anonymous goals.

Until now the Irish campaign against internet blocking proposals has been remarkably effective at getting the issue onto the public and political agenda. With the help of the StopSOPAIreland site, the proposed law has shot from almost no public awareness to national prominence in just a few days, and has seen some Irish politicians genuinely engaging with our concerns. It also is giving many Irish netizens a grounding in political advocacy, something that will help as we confront more of these issues in future.

The Anonymous attacks, if they go ahead, will jeopardise this - making it easier for the music industry to spin critics as criminals, and giving unsympathetic politicians an easy, crowd pleasing reason to ignore the campaign. If the headlines shift from "New law threatens civil liberties" to "Hackers attack Irish government websites" then we will be on the back foot, jeopardising what's been achieved to date.

I don't think Anonymous tend to reconsider their targets once chosen. But if they do, now would be a good time to rethink the Irish attack.

Ireland's SOPA: A FAQ

What's this all about?

Long story short: the Irish government plans, before the end of January, to bring in a law which would allow Irish courts to block access to websites accused of infringing copyright (and possibly do other things as well).

Isn't that a short time for parliament to examine it?

The Irish parliament won't have a chance to debate it before it's passed. The law is to be brought in by a statutory instrument, something which requires only the stroke of a minister's pen.

Who's responsible?

The law is the responsibility of the Department for Jobs, Enterprise and Innovation where the key person is junior minister Sean Sherlock.

What will the law say?

We don't have a final text yet. But the key part is likely to be similar to a previous draft which said:

3. The Act of 2000 is hereby amended by the insertion of the following subsection after subsection (5) of section 40:

(5A)(a) without prejudice to subsections (3) and (4), the owner of the copyright in the work concerned may apply to the High Court for an injunction against a person who provides facilities referred to in subsection (3) where those facilities are being used by one or more third parties to infringe the copyright in that work. 

(b) In considering an application for an injunction under this subsection, the court shall have due regard to the rights of any third party likely to be affected and the court shall make such directions (including, where appropriate, a direction requiring a third party to be put on notice of the application) as the court may deem necessary or appropriate in all the circumstances.

Can we have that in English please?

Certainly. This will give the Irish courts an open-ended power to grant orders against ISPs and other intermediaries who provide facilities which might be used to infringe copyright. This could include hosting providers, social networks, forums, video hosting sites - potentially most online services.

What will these intermediaries be required to do?

We don't know. At a minimum this will probably allow courts to require ISPs to block access to alleged infringing sites (such as The Pirate Bay). Over and above that it becomes impossible to say - the language is so vague it might, for example, allow a court to require an ISP to introduce a three strikes system or to block certain ports. However, once copyright plaintiffs get hold of this power you can expect it to be pushed to its absolute limit.

So who will pay for this?

We don't know. It is possible, under this draft, that the intermediaries will have to pay for both the legal costs of the court application and also the running costs of whatever they are ordered to do - for example, the staff costs of receiving and administering block lists. In that case, expect costs to be passed on to the end user.

Will the sites to be blocked have a right to be heard?

Maybe. The draft language does say that affected third parties might be given notice of applications to block them. On the other hand, in 2009 an Irish High Court judge was happy to allow Eircom to block The Pirate Bay without any notification or chance to be heard which doesn't bode well for the future.

What sort of standard will be used to decide if a site should be blocked?

Your guess is as good as mine - the draft is completely silent on this point.

Isn't this rather vague?

Yes. By failing to provide any real detail, the proposed law leaves the future of the Irish internet essentially in the discretion of Irish judges.

Could this harm Irish industry?

Yes - including the latest push to establish Ireland as a centre for cloud computing. Here's what tech journalist Adrian Weckler had to say:

With their billions of users, YouTube, Facebook and Twitter inherently find some copyright protected material leaked onto their web services. The new law will give music and movie firms the legal footing to get ISPs blocking. That may not go down too well with Google and Facebook, which are two of Dublin's biggest employers. It probably won't sit easily, either, with the IDA, which may have to alter its pitch to large US social media firms who may have been thinking of setting up in Ireland. (That includes Twitter.)

So where's the Regulatory Impact Assessment? Surely we need more detail about the impact this law will have?

Tumbleweed.

Would this vagueness breach the European Convention on Human Rights?

Quite possibly.

If nothing else will it at least stop illegal downloads and protect Bono's pocketbook?

No. Blocking is easily circumvented. But don't take my word for it - here's what UK regulator Ofcom had to say:

For all blocking methods circumvention by site operators and internet users is technically possible and would be relatively straightforward by determined users.

So why is the government pushing this law now?

In a 2010 decision the High Court held that European law required Ireland to introduce blocking into domestic law, and that Ireland was in breach by failing to provide for court ordered blocking.

Doesn't that decision mean that blocking must be introduced?

Maybe. The law in this area is extremely complex, particularly since the European Court of Justice has given an important decision restricting the use of blocking in the meantime. That decision found that filtering would be impermissible if it undermined freedom of expression and blocked lawful communications - something that is inevitable if this proposal is adopted.

From a practical point of view, the European Commission - which monitors implementation of EU law - doesn't seem to think Ireland is in breach and hasn't taken any action against Ireland for failure to introduce blocking. Irish telecoms group ALTO have also put forward a different view arguing that this law is unnecessary.

However, even if we assume that EU law does require some form of blocking then it should not be introduced in a way which

• short circuits the democratic process and without proper scrutiny by the Irish parliament; and
• introduces intolerable uncertainty for Irish online businesses and fundamental rights.

What can I do about it?

If you live in Ireland and you want to stop this proposal then you should let Sean Sherlock (email) (twitter @seansherlocktd), the senior minister Richard Bruton (email) and your TDs what you think of it. Phone their offices if you can - one phone call will outweigh 20 emails.

StopSOPAIreland.com has more you can do.

If you live outside Ireland, you might still email Richard Bruton and Sean Sherlock to let them know the effect this will have on Ireland's reputation as a place to set up technology businesses.

One more thing - is it really true that the music industry wants the Irish taxpayer to pay for supposedly lost sales?

Yes. I hope you brought your wallet.