Last year I had the honour of being a judge for the Irish language category in the Irish Blog Awards. The eventual winner was the lovely Hilary NY (no, not that Hil(l)ary). Anyway, I’ve happened to come across the longlist for this year’s award in this category, Best Use of the Irish Language in a Blog (like Colm Keena, I have no intention of telling you where I got it). A fine bunch of blogs. Watch out for the official longlists coming soon at http://awards.ie/blogawards/.
Some interesting developments in Irish legal education to ponder…
The University of Limerick’s School of Law (website) has been advertising its “Law Plus” option (admissions info). The modular course involves the familiar essential law courses (i.e. the foundation courses, which overlap with some of the ones you need for post-degree professional courses in Ireland), and the options can be chosen from the School of Law or from other schools (including Japanese, Irish traditional music, politics and more). There’s also one semester (of the four-year, i.e. eight-semester degree) spent in a work placement. Now, it would still be necessary for a student to take some of the optional semesters in certain law courses if they wanted to cover the professional course entry requirements - but certainly it seems possible to do this and also take optional law and non-law modules within the degree.
Download the brochure here (PDF).
The Kings Inns (responsible for the training of barristers) has announced that the BL (barrister-at-law) degree will be available on a part-time basis from next year. Fair is fair, I should welcome this - I have been a strong critic of the Inns and its decision a few years ago to get rid of the part-time course and substitute a full-time, 12k-in-fees course for it. This was a regressive step and the Inns were rightly criticised by others too for this, especially given the fact that non-law graduates could take the diploma (i.e. the ‘conversion course’) by evening classes but were then required to give up their job and then find 12k while being unable to work to take the course - a significant and inexplicable restriction on access to education and to the profession. However, the Inns should be congratulated on its decision (flagged quite a lot in the last few months, but officially announced last week) to reintroduce part-time study (alongside the new full-time course). The course will be taught on weekends over two years with occasional weekday events (presumably in the courts etc!). Not to say that further reforms are unnecessary - they certainly are - but this is cause for (some) celebration. In the context of the Competition Authority’s report on the legal profession, which included the education and training systems (discussed here), this is a step in the right direction.
My supervisor, Eoin O’Dell, has been blogging about the more general question of the relationship between legal education and the legal profession, and on future directions for law schools; he writes:
On the one hand, law schools must recognise the reality that many of our graduates go on to practice (this is more true in the US than in Ireland), and take this into account in constructing syllabi; on the other hand, the legal profession must recognise that there is more to a university law school than simply vocational training for practice, and that university research and research-driven - often interdisciplinary - teaching are valuable not merely instrumentally as providing potential tools in the toolkit of the practitioner but also in their own right.
Read his full post here and add your own comments.
This review article in the New York Review Of Books deals with the range of books about blogs. I’ve only got a couple of them (some are old, some are new, not all are available officially in this part of the world) but want some more - the article doesn’t really draw on the book themes all that much (pity, really), but even the list is fun to play with. I’ve added my own links to amazon.co.uk where possible, but they may be available elsewhere - I do all (or most of) my online buying at the Book Depository):
We’ve Got Blog: How Weblogs Are Changing Our Culture
compiled and edited by John Rodzvilla, with an introduction by Rebecca Blood
Basic Books, 242 pp., $20.00
Against the Machine: Being Human in the Age of the Electronic Mob
by Lee Siegel
Spiegel and Grau, 182 pp., $22.95
Republic.com 2.0
by Cass R. Sunstein
Princeton University Press, 251 pp., $24.95
Blogwars
by David D. Perlmutter
Oxford University Press, 235 pp., $24.95
The Future of Reputation: Gossip, Rumor, and Privacy on the Internet
by Daniel J. Solove
Yale University Press, 247 pp., $24.00
We’re All Journalists Now: The Transformation of the Press and Reshaping of the Lawin the Internet Age
by Scott Gant
Free Press, 240 pp., $26.00
Blog: Understanding the Information Reformation That’s Changing Your World
by Hugh Hewitt
Nelson Books, 225 pp., $14.99 (paper)
The Cult of the Amateur: How Today’s Internet Is Killing Our Culture
by Andrew Keen
Doubleday/Currency, 228 pp., $22.95
Naked Conversations: How Blogs Are Changing the Way Businesses Talk with Customers
by Robert Scoble and Shel Israel, foreword by Tom Peters
Wiley, 252 pp., $24.95
Blog! How the Newest Media Revolution Is Changing Politics, Business, and Culture
by David Kline and Dan Burstein
CDS Books, 402 pp., $24.95
While we’re talking about lists, recently I’ve been using the Mediaforum list of books on Irish media - it’s really useful and now is a good time to share it.
I like fonts and typefaces (as regular readers know and know).
The Atlantic Monthly (a magazine I love and subscribe to, now available online without payment as half the blogs on the planet are reporting this week) has this feature on the development of typefaces. A video insert to match is also available. And Damien noted that Helvetica (the documentary) had made it onto Google Video (but alas, it’s gone). You can buy the DVD instead.
Happy days…
Ofcom in the UK has various responsibilities under the Communications Act, but one of them is dealing with broadcasting complaints (the equivalent under current Irish law is the Broadcasting Complaints Commission). Decisions are released in a regular Broadcast Bulletin; today is issue 101 and it includes a very interesting case - not just for what it’s about but also for some of the comments made by Ofcom.
Complaints were made against sumo.tv, “a website and TV channel to showcase the best in User Generated Content and to share the revenue earned from user submissions with the people who actually make the content”. It’s the TV bit that they’re dealing with of course.
In the first clip, a gentleman (who apparently looked young but was actually a grown-up (’adult’ seems a bit stretched!) “performed a rap, which included a steady stream of the strongest language and graphic sexual references and which lasted over three minutes” and the second “appeared to be a mobile phone video of an adult frightening a young child (approximately five years old)”.
Ofcom noted that the Broadcasting Code applies to all broadcast content without reference to origin. On the other hand, it was noted that:
Ofcom acknowledges and welcomes the fact that, to some extent, user-generated content provides opportunities for a more interactive experience for viewers and listeners, offering the ability to contribute more to programming than was previously possible
but reaffirms that it is the responsibility of the broadcaster to comply with the Code. They note that while there is a certain hands-offness when it comes to content submitted to the website, “when such material is subsequently considered for broadcast, the broadcaster needs to be mindful of the appropriate Rules”. The two clips mentioned are found to violate the Code - i.e. they shouldn’t have been broadcast.
It gets really interesting, though, towards the end, where Ofcom decides to take a look at the Sumo FAQs. They find that Sumo’s terms don’t satisfy them as to things such as consents, and take a particularly dim view of the outsourcing of compliance requirements:
The broadcaster appears to place the onus of ensuring any material broadcast is compliant with the Code on suppliers such as the general public. Sumo TV also appears to be unreasonably reliant on its terms and conditions, seemingly at the expense of appropriate compliance processes.
This is important; a general note is attached to the decision - a statement of the obvious, perhaps, but the fact that it was necessary is an indication of the divergence in views between the regulator and some parts of the industry. I’ve emphasised the key bits:
Ofcom is concerned that some channels broadcasting considerable amounts of user-generated content may attempt to place too much responsibility for ensuring compliance with the Code with the individual user, and not perform sufficient checks themselves. Responsibility for compliance with the Code always remains with the broadcaster. Proportionate but robust pre-broadcast checks may impose extra costs on the broadcaster, and limit the amount of user-generated content it can air. However, it is clearly important to ensure that people aged under eighteen are appropriately protected, and that individuals appearing in items are not unjustly or unfairly treated or have their privacy unwarrantably infringed. Ofcom therefore reminds licensees who broadcast user-generated content of their responsibilities to ensure full compliance with the Code, and in particular with the sections in respect of Protecting the Under Eighteens, Harm and Offence, and the Fairness and Privacy.
Broadcasters need to be aware that simply because material is available on the web, this does not mean that it is automatically suitable for broadcast on a licensed service which has to comply with the standards as set out in the Communications Act.
(Long post. Forgive me. This is too funny.)
This blog deals with many issues, including cyberlaw. In fact, cyberlaw is one of the categories I use. Cyberlaw is a term used to describe law (or regulation, or control) on the Internet, or in cyberspace. My profile on my Law School’s website (which I must update!) says that my research interests include cyberlaw. I wrote a paper last year called Minerva’s Mouse: The Challenge Of Cyberlaw that had a whole section on what cyberlaw is or isn’t. I also presented a different paper at the Society of Legal Scholars last September in the Cyberlaw subject section. The convenor of that section, Prof. Steve Hedley (UCC), does great work with the cyberlaw mailing list. He also maintains a list of graduate level law courses in cyberlaw.
To be honest I’m not a huge fan of cyberlaw as a term but it’s quite a common one and a lot of people use/understand it, not least the authors of noted textbooks: examples include Brian Fitzgerald (QUT, Australia) who edited a two-volume set called Cyberlaw (I had the pleasure of meeting him last summer in Boston. He’s cool). On my library desk, I have a copy of the new edition of Cyberlaw: problems of policy and jurisprudence in the information age by Bellia, Berman & Post. Some day, I hope to visit the Center for Internet and Society at Stanford Law School (check out their website at http://cyberlaw.stanford.edu/). Newcomers, of course - sure Harvard Law School has taught courses with cyberlaw in the title since 1994…
All this is trivial, though, when you compare it with the importance of the use of the word cyberlaw by a law firm called Cyberlaw(R) PC (their website, at the inventive address of cyberlaw.pro, is here; he has a blog called Cyberlawg. Yes, we must be aware of Mr. Menhart’s trademark (which he doesn’t actually have, as it’s pending) and as the EFF reports, he’s already tried to take a shot at a cyberlaw blogger, Michael Grossman (who uses Cyberblawg); not sure why as Grossman’s blog is relatively new and quite quiet. Maybe Menhart should try pick on someone else. There’s loads to choose from, especially in the light of his delightfully expansive trademark application, which includes gems like:
Providing a website that features information on the development of international law, regulations, legal policies, and legal practices in a manner that promotes global governance by all types of organizations;
and not to mention
Providing information relating to legal affairs
You can see the trademark application here - serial number 77341910. Note that this is a “Newly filed application, not yet assigned to an examining attorney” and nothing more.
I look forward to receiving a notice from the esteemed cyberlawyer. Bring it on 
I read about this sorry affair on one of my favourite technology law (or cyberlaw?) blogs by Eric Goldman. Here’s his post. A separate post came from Peter Black (also of QUT, and also interested in cyberlaw), so cheers to Peter for that.
Goldman did a little bit of digging and found that the word cyberlaw had been used in news stories back as far as the early 1990s. He mentions Jonathan Rosenoer’s column on AOL; I found (from an archived usenet group) that Rosenoer even had a trademark (at the time!).
CyberLaw ™ is published solely as an educational service. The author may be contacted at …; questions and comments may be posted on America Online (go to keyword “CYBERLAW“). Copyright (c) 1993 Jonathan Rosenoer; All Rights Reserved. CyberLaw is a trademark of Jonathan Rosenoer.
It was indeed registered by him but was designated as abandoned in 2000 (US trademark office serial number 75085442). The trademark was filed in 1996 (with a claim of first use in commerce for 1992) but the record doesn’t show much success
2001-02-22 - Abandonment - Failure To Respond Or Late Response
2000-06-23 - Final refusal mailed
2000-05-18 - Assigned To Examiner
1999-03-12 - Letter of suspension mailed
1999-03-12 - Assigned To Examiner
1997-06-17 - Letter of suspension mailed
1996-11-07 - Non-final action mailed
1996-10-23 - Assigned To Examiner
But even back in those days, cyberlaw-l was used as the name of a mailing list (different to Steve Hedley’s cyberlaw list)
CYBERIA-L@listserv.cc.wm.edu (the law and policy of computer networks; formerly CYBERLAW/CYBERLAW-L) (send the following message to the listserv@listserv.cc.wm.edu (or listserver@eagle.birds.wm.edu): subscribe cyberia-l Your Name)
And the EFF (alive at that stage so it’s appropriate that they’re involved now) had cyberlaw as a subject heading in their Compuserve form in 1992 (here).
In February 1987 (nearly a whole twenty-one years ago), Cyber Digital Inc included the following in an earnings report (PR Newswire via Nexis):
Cyber Digital Inc., designs, develops, manufactures and markets, digital switching and networking systems known as CyberSwitch, CyberLAW and CyberHUB. CyberSwitch provides voice communications capabilitiess. CyberLAW is a local area and wide area network. CyberLAW enables users to connect together personal computers, terminals, wordprocesssors, printers, and many different makes of computers and office systems. CyberLAW permits users to send and receive data, text, as well as graphics information over standard existing telephone lines. CyberHUB combines the capabilities of CyberSwitch and CyberLAW into a single multi-purpose integrated system offering simultaneous transmission of data and voice.
Hmmm.
Oh, and finally, and you’ll all love this. Menhart’s specimens submitted in support of his (as yet unsuccessful) application consist entirely of screenshots of his own website. Have a look at the gory details here. Is that really it?
Special prize (consisting of respect and congratulations, terms and conditions apply, value may rise as well as fall) for the first person to integrate this video (on what various websites/online communities would be like if they were people at a house party) into the teaching of Internet studies. (Perhaps vaguely NSFW, depending on where you work…)
In particular, the dramatisation of Facebook’s news feed / updates is particularly funny.
Reviewed in today’s Globe and Mail is a book by University of Toronto history professor Steve Penfold, published by University of Toronto Press: The Donut: A Canadian History. (For anyone who happens to be knocking around Toronto, there’s a talk being given by the author (with free donuts included) on Monday.
Penfold, of course, is well-known in Canadiana, not least as the author of a PhD on donut shops (given an Ig Nobel award in 1999 for said research; actually I’ve always thought that that was a little unfair, as it’s probably on the more relevant and interesting wing of 21st century sociology PhDs…). Looking forward to reading this.
On a related note, Facebook types may wish to give virtual donuts and coffee to their (virtual) friends with this application. We Love Tim Hortons.
Times Higher Education (the THE; wonder how that will be indexed) is a relaunched version of the Times Higher Education Supplement (which neither belongs to the Times nor is a supplement, giving accuracy of only 50%). It’s also a magazine rather than a tabloid now, and the website is no longer behind a pay wall.
The first issue was published last week, and by coincidence (or not?) there’s a nicely interconnected series of articles on students, higher education and the law. (The interconnection is all in my head and the context/comments are also all mine, so don’t blame The The if you think it’s silly). The (primarily England and Wales) Higher Education Act 2004 is the common link.
The Act infamously introduced the top-up fee system and reformed aspects of higher education funding. An ongoing issue that institutions and students have tried to deal with is the question of student expectations and the role of contract. This issue was raised by education officer Wes Streeting of the National Union of Students on a number of occasions at the start of the 2006/7 academic year (see for example this Guardian story from September 2006) and a lot of criticism was expressed of the piecemeal approach. In 2007, Universities UK (the association of universities) carried out a survey (PDF), which had some particularly interesting results, not least:
Members were specifically asked whether they considered that they had a de-facto contract in place. This question aimed to clarify the legal context in terms of the current debate which has largely been framed around the concept that the use of a student contract is a new development. Virtually all respondents considered that they had a de-facto contract in place, generally established at the point at which a student accepts a place at university. Confusion over the contractual relationship may arise from the number of documents which make up the de-facto contract. This issue was reflected in the survey results. A common response to the question about de-facto contracts was a description of the documents which formed the contract, for example the offer of a place, the student’s acceptance, issue of a joining pack, the student’s signature on the enrolment form, student access to University regulations and guidance material, re-enrolment, assessment etc. One institution commented that they were currently trying to identify what documents constituted the de-facto contract.
Last year, I reported on the apparent increase in complaints. That was interesting. But moving to 2008, we have the first of our stories from THE (I’ll stop calling it The The now, honest), reporting on a new (and seemingly popular) template for a ’statement of terms’ (no longer a contract) developed by the Universities and Colleges Education Law Network (UCELNET). Tragically, I can’t get any info on the network as the website is members-only (and only HE institutions are members), but it does seem that the draft document is broader than the headline (which is, for the record, Fees ‘do not buy’ a guaranteed degree - a good point, but hardly the only one for a student contract statement of terms. I do wonder (but cannot confirm) how this contract statement of terms will be classified and enforced…
On that fees issue, though, it is reported in our second story that Coventry University has expelled 3% of it students and blocked 11% from accessing resources due to the non-payment of tuition fees. Perhaps a contract statement of terms will have something to say about that issue too - it does seem quite disturbing.
The final issue relates not just to these contractual issues but also to a further part of the Higher Education Act - the student complaints scheme. Part 2 (and associated Schedules) of the Act set up this new scheme and also excluded the jurisdiction of any university Visitor (if such jurisdiction existed) in relation to student complaints. The scheme is administered by the Office of the Independent Adjudicator for Higher Education and the adjudicator is Baroness Ruth Deech. So our final article is a report on a recent court decision that clarified that judicial review can be sought of OIAHE decisions. The decision, R (Siborurema) v OIA (which THE should really have linked to - why can’t print publications realise that a website is different to a piece of paper and that the occasional hyperlink wouldn’t kill them?) was handed down in December and has been published online [2007] EWCA Civ 1365 and summarised in the (actual) Times.
The adjudicator made what I see as quite a worrying assertion:
As to the amenability of OIA to judicial review, Baroness Deech in her statement expressed the firm belief that the efforts of OIA to serve students and HEI’s cheaply and efficiently would be hindered significantly if decisions made under the Scheme were to be subject to judicial review. OIA regarded the Scheme as a true alternative system to recourse the courts, without precluding such recourse. (Pill LJ, para 41)
The Court of Appeal does not accept this argument, and reasserts the supervisory role of judicial review, particularly in relation to a question raised in this case on whether the operation of the scheme was in accordance with the Act. This is quite important in the context of the way in which the office was set up (the Minister is allowed to recognise a body if it is acting in accordance with particular principles - very similar to the proposed method in the Defamation Bill here and in line with a prevailing ‘co-regulation’ trend). As it turns out, the applicant has a particularly poor case and the OIA is found to have acted in accordance with law.
Some other interesting nuggets from the opinions: Moore-Bick LJ says that “the Act therefore contemplates that the designated operator, currently the OIA, will be performing a public function, albeit not one that involves the determination of the legal rights and obligations of the parties involved in the complaint. As such it cannot be equated to a body established by one or more institutions to act as an arbitrator, mediator or conciliator in a purely private capacity” (para 69) and Richards LJ adds, in the context of the intensity of review, that “in this, as in other matters, little assistance is to be derived from reference to the former jurisdiction of the university visitor, which the statute abolished. The Scheme represents a new approach to the review of qualifying complaints and is not intended to replicate the old system.”
For some other thoughts on student complaints in higher education and the law, see Neville Harris’s detailed survey (which mentions the Siborurema case in its earlier stage) in Legal Studies 27(4) here), and a shorter summary by Liz Buckton here (Perspectives: Policy and Practice in Higher Education 12(1)).
This is the second and final part of a report on the Media Law & Regulation seminar hosted by the School of Law, Trinity College Dublin. For part one, see here. Three very different issues were addressed in this session - the protection of sources and two defamation topics, trial/pre-trial procedures and damages. Again, this is a report without links, they’ll be added later.
Luan Ó Braonáin SC, a barrister, spoke about the ‘Protection of Journalistic Sources’, comparing Gray v Minister for Justice (Quirke J, HC), where it was noted that a “questionable privilege” was asserted by the journalist, and Mahon v Keena (Divisional HC), where it was agreed that it was well established that there was a privilege against non-disclosure. Choosing deliberately to begin his analysis with Article 34 of the Constitution (explaining that judges and courts administer justice and not parties, witnesses or the media) and the role of the law of contempt of court, he summarised the accepted law on privilege as relating to legal professionals, religious (sacerdotal) situations and members of the Oireachtas (in respect of parliamentary utterances). Under Irish jurisprudence, he argued, journalists “don’t have a privilege not to answer questions in a court if directed to do so by the court”.
He reviewed the history; in 1991, a Law Reform Commission consultation paper expressed the view that the law (as it was) shouldn’t be amended; the law at the time was Re Kevin O’Kelly (a case where a journalist was jailed for three months for refusing to disclose a source). The language of the LRC was not the most positive towards the media and their role; they found pretty quickly that the media went crazy about this! When the report was published in 1994, criticism was noted and principles examined in more detail but a majority of the Commission agreed not to disturb O’Kelly; a minority favoured the British (statutory) approach, being section 10 of the Contempt of Court Act 1981. Subsequently, the European Court of Human Rights found that the British protection of sources itself was inadequate, in Goodwin v UK.
What has happened in Irish jurisprudence since the LRC and Goodwin in relation to the protection of journalistic sources? Ó Braonáin turned to the recent decisions.
Turning first to Gray, where there was a claim for damages in relation to privacy (information was leaked by the Gardai to a journalist, who wrote a story about the Grays ‘harbouring a sex offender’; see a summary from Eoin O’Dell’s blog *here*), the question was what evidence could they (the Grays) produce that there had been a leak? The journalist testified saying that he had received an anonymous phone call from a woman, but refused to answer whether he had spoken to members of the Gardai as this would disclose the source of his information. Asked if the statement that Gardai are ‘not commenting’ in the article is true (yes), then asked if they ever did comment (no answer) - thus the plaintiffs established it to the satisfaction of the judge (no other conclusion possible). The judge took an approach which avoided disclosure (through nuanced, clever questioning without having to force), but also expressed scepticism about the existence of the privilege. This subtle approach is the “correct approach”, Ó Braonáin said, as this is not actual privilege, which journalists are not entitled to. But while this is not a privilege, there is nonetheless an interest on the part of a democratic society in allowing information to reach the media. Our Constitution makes provision for freedom of expression and that the people have an entitlement that is not to be interfered with unnecessarily.
In Mahon v Keena, the Court focused entirely on the Convention aspects, made “fairly swinging findings” that there was a principle of non-disclosure (although in the context that the parties did not dispute this which is very relevant). The problem with the O’Kelly approach was that it was in a context of judges trying to assert their authority by compelling witnesses to answer a question - but now, because of the constitutional and Convention contexts, judges are more willing to seek ways to avoid such a conflict (as in Gray). There’s little doubt that the High Court would have jailed Kennedy and Keena if they could have. He concluded by saying that we await litigation between a newspaper and a litigant where the latter doesn’t accept the Convention stance.
Karen Harty (McCann Fitzgerald) spoke next. Harty is a solicitor, she explained, who has specialised in media law since being an apprentice, but does a balance of plaintiff and defence work. Her comments related to procedural deficiencies in the libel law system, but she noted that she is ‘not a fan; of the Defamation Bill. If procedures not operating efficiently or effectively, the law can be irrelevant. She added that some aspects of the Bill seemed to be (as in the classic Father Ted episode) running the risk of destroying the car by trying to fix a dent with a hammer; the motor theme was continued by the metaphor of the High Court as the ‘engine’ that must work correctly if the system of defamation law is to stay on the road. The system from publication to decision was explained and criticised, noting problems with delay, information and more.
On the issues raised in earlier talks, it was wondered whether the drafters of section 24 have thought about the practical implications of what they drafted? It is clear in the Bill that the jury decides whether the defendant has complied with responsible-journalism requirements; in the UK, the practice has developed that in a jury case, the judge is the arbiter of fact in relations to Reynolds. Therefore the jury will have to be presented with a detailed list of questions to be answered. Also relevant is the fact that such defences will lead to detailed particulars being sought by the plaintiff (i.e. in pre-trial phases) of the responsible steps taken by the journalist.
Harty’s wishlist for reform included assigning judges to the jury list who could build up expertise, reforming the time and scheduling elements of the listing process, the introduction of case management and more. She hoped that academic members of the audience would come away with a better perspective on the realities of libel litigation for the people involved.
Paula Mullooly (McAleese & Co), also a solicitor with significant defamation law experience, spoke about damages in the law of defamation, discussing the role of aggravated and exemplary/punitive damages. Apologies for the lack of a report here (a technical error of my own making); Mullooly discussed in particular Crofter v Genport, the recent (non-libel) Shortt case (where significant punitive damages were awarded), the taking of the defendants’ means into account in Steel & Morris v UK (the famous “McLibel” case), the ‘unofficial’ cap on damages in the UK, and more. She also reviewed the amounts awarded by the Irish courts in various cases such as the libel actions brought by Denis O’Brien and Proinsias de Rossa, and also discussed the slander action (itself a rare beast in Irish law…) by Joseph Murphy Jnr (where €300,000 was awarded!)