When Irish eyes are watching

Last year, I was invited to give a ‘response’ to two very interesting papers at a seminar of the British Association for Comparative Law. The papers, by Paula Giliker and Elspeth Christie Reid, were on the evolution of breach of confidence and privacy, primarily in relation to England and Scotland. (Eric Clive wrote up his notes from the day here).

The papers, including a developed version of my comparative comments, are now being published in Juridical Review. A slightly earlier version of my contribution is available on SSRN through the University of Edinburgh School of Law Working Paper Series (here’s the series, and while there why not also download my colleague Judith’s latest paper on big data and small government…).

My article is a short one, and the main thing I hope it does is remind some UK-based readers of the interesting things that have happened in Ireland in relation to the privacy cause of action. I do spent a good deal of space talking about Sullivan v Boylan [2013] IEHC 104, which is a particularly useful contribution to the English and Scottish debates on how to handle the evolving questions of privacy and confidence. I also talk a bit about New Zealand.

Beyond breach of confidence: an Irish eye on English and Scottish privacy law

This article is based on comparative comments (with special attention paid to Irish law) presented at a seminar on breach of confidence and privacy. It is first argued that a continuing uncertainty regarding the role of statute in relation to privacy is common to the development of doctrines in both England and Scotland, with similar anxieties present in other jurisdictions. In the absence of statutory clarity, the questions arising out of debate on the nature of the cause of action, and the consequences of variation in definitions of “privacy”, are considered – with special attention to developments in Ireland and New Zealand. The relationship between the evolution of breach of confidence and the human rights framework is also noted. Finally, the prospects for law reform and/or convergence across jurisdictions in the United Kingdom are assessed.

(Sorry if you expected this post would be about this; words fail me on that subject, I’m afraid).


Here’s a paper by me on the European Convention on Transfrontier Television. Not perhaps the most familiar of legal instruments, but I promise you that it is a story full of mystery and excitement. The background to the work is that the Council of Europe has (had?) a convention on broadcasting, which came out of a great deal of interest in the subject in the 1980s. (The Television Without Frontiers directive of what was then the EEC emerges from the same period). However, after the EU revised its law (the Audiovisual Media Services Directive), the Council tried to do the same.

What happened next took me a long time to unpick (unpack?) and involved a lengthy FOI process with the UK government, a (fortunately more straightforward) access to documents request to the EU, research on the EU’s external powers, and quality time with Council of Europe minutes. And then I presented it (to three different audiences), and had some wonderful colleagues volunteer to read it and give detailed comments.

This version (the ‘Accepted Version’, on SSRN) appears in the Edinburgh Law School Working Paper Series.

Death of a Convention: Competition between the Council of Europe and European Union in the Regulation of Broadcasting

If you have access via, for example, a university library, the published version is available here, in volume 5(1) of the Journal of Media Law.

This article considers a dispute between the European Union and Council of Europe regarding their respective roles in the broadcasting field, so as to explain and assess its relevance for the development at the international level of media law and policy. The dispute is a long-running one and dates back to the adoption of the first EEC Directive and Council Convention on this subject in 1989. It is argued that the expansion of the scope of EU broadcasting law and the consolidation of the European Commission’s role in external affairs left little room for the Council to continue to exercise influence over the regulation of the electronic media in the way it has done for some time. The exact nature of the dispute between the institutions, and the response of a vocal member state, is ascertained through consideration of published minutes and internal correspondence, set in the context of doctrinal and political developments. The article concludes with analysis of possible future actions for the Council.

FISA, NSA and PRISM: behind the headlines

My Edinburgh colleague Judith Rauhofer (who has a particular research and teaching interest in privacy, data protection, and information), along with Caspar Bowden (who many readers will know through his writing and advocacy on privacy), has just launched a very timely paper on data protection in ‘the cloud’, with a particular emphasis on data stored in the US and subject to US law on access to data. Judith and Caspar have been making this argument well before the current PRISM/NSA reporting, and the paper makes it clear how there are already a number of important legal issues that require attention. The paper engages with recent scholarship on cloud computing itself (e.g. the Queen Mary projects) and the proposed new Regulation on data protection. It also contains a very detailed analysis of FISA. But the key argument, and the one that deserves the most attention from those who have reacted with alarm to recent news reports, is that about the obligations of European institutions to protect fundamental rights; both the Charter and Convention are discussed.

The paper is now available on SSRN:

Protecting Their Own: Fundamental Rights Implications for EU Data Sovereignty in the Cloud

I’d tell you everything if you’d pick up that telephone: political expression and data protection

My recent paper on data protection and political marketing is now available on SSRN: download it here. The final version appears in the April 2011 issue of the European Human Rights Law Review (get it at a library or via Westlaw). It was a fun piece to write, although on mature reflection it’s probably a bit more provocative than I would usually be in print. In some ways, it’s an attempt to push arguments to extreme outcomes in order to understand how different notions (privacy and speech, but not superinjunctions!) relate to each other. In this case, I find myself arguing (not in as many words) for the ‘right to hassle’, specifically the possibility that the welcome expansion of data protection law might make it harder for political debate to take place. The paper takes the complaints against UK political parties for automated telephone calls as its starting point but spins off in a number of directions after setting out the recent decisions of the Information Commissioner regarding a range of parties. Actually, I started writing it as a blog post about Nick Clegg some years ago; came back to it in February 2010 after further cases were reported, then finished it last summer.

Something else that’s not in the paper as bluntly as it should be, but did influence the argument, was my own realisation (when I used to ‘do’ politics in Dublin) that the traditional door-to-door method of communicating political ideas became harder and harder each time, as more voters moved into apartment blocks with locked doors. Normally, I’m the type who is sceptical of free speech arguments against data protection (and am awfully cranky with telemarketers), and so I surprised myself while writing this in how much I was coming down in favour of an exception to the relevant data protection rules. The wider theme of data protection and free speech is something that David Erdos is working on at Oxford, of course, but I do hope you enjoy my shorter contribution too, and comments are welcome.

(I’m also thrilled that the title survived: if you haven’t already figured it out, this video tells all…)

“What is the role of freedom of speech in a democratic society and where are its limits?”

The Council of Europe and ELSA International are happy to announce  the extension of the deadline of the ‘Our Rights, Our Freedoms’ competition. Law students now have until 15 August 2010 to submit their work – an essay or a photo report – and win one of 6 prizes worth up to 5,000 €.

Top prize for the essay competition, on the subject of the title of this post, is €3000.  There’s a photography competition too, on the theme of the European Convention on Human Rights.  You have to be a ‘law student in Europe‘ to enter.  Further information from the competition website.