Blame it all on my roots

This month has seen two very different stories about emergency legislation emerge on either side of the Irish Sea. Here follows the results of my ruminating on the stories (my word of the week after seeing a professorship in non-ruminant science advertised).

In the UK, the Data Retention and Investigatory Powers (“DRIP”) Bill is before the House of Commons today.  After a debate on timing, at lunchtime today, it was agreed that all ‘stages’ be taken today. (Normally, legislation gets a broad second stage debate, consideration over a longer period (line by line) in a committee, and a final Commons stage).  It’s due before the House of Lords tomorrow.  Given the strong support for the truncated timing given by MPs earlier today (only 50 or so voted against), it’s very likely that the Commons will say yes – what the Lords make of it is to be seen.

I signed a letter about this legislation, which has provoked some interesting coverage (e.g. here, here and here).  I think that the Government is making a mistake in how it’s handling this legislation. It’s well known that the Court of Justice of the European Union found the Data Retention Directive invalid as a matter of EU law in April.  As Judith Rauhofer and I pointed out in our editorial (see part 4), this raised significant questions for the future of national measures adopted on the basis of it, as well as similar replacement measures. The CJEU declared the Directive invalid immediately and also made important points about what safeguards were required as a matter of EU law, including human rights.

Now this could have been a good opportunity for sober consideration of how to draft a new scheme, compatible with EU law and the European Convention on Human Rights, and informed by the engaging public debate on surveillance, security and technology. But readopting the bulk of the EU measure (without necessarily restoring lawfulness), along with some separate ‘clarifications’ (which may have merit in themselves or at least be the basis for further debate), is not a way for Government to establish and defend the legitimacy of data retention and surveillance. It’s inadvisable that this be construed as an emergency.  It’s clearly a matter of national importance and I do see the significance of the arguments put forward on the need to have a well-regulated system of intelligence and investigation. And something did have to be done after the CJEU’s decision – doing nothing would be, in my view, still a mistake.

But after the last few years of Snowden, the NSA, Wikileaks, well-founded fears about technological development and all that, now is the time to build support and trust. (The sad thing is that for a lot of people who don’t follow Parliament closely, they are paying attention today and not really seeing democratic deliberation at its best).  Today hasn’t achieved the goal of establishing trust and legitimacy, and I’d encourage readers to contact members of Parliament (especially the House of Lords) asking for a proper, careful debate.

Meanwhile, in Ireland, emergency legislation was one of the many proposals put forward to deal with a licensing decision (under the Planning & Development Acts – see part XVI) by Dublin City Council. The decision was significant because it pertained to proposed concerts by Garth Brooks. Promoters had already sold tickets (“subject to licence”) for five concerts at Croke Park (the largest stadium in the city), but the local authority only granted a licence for three.  (The full reasoned decision is published here).

One point that seemed to annoy some people was the inability of elected representatives to override this decision. A fair point, if one disregards the sorry history of planning corruption in Ireland and the need to apply the law in a consistent and transparent fashion. So with that in mind, ‘emergency legislation’ was proposed (one Bill was even drafted by an opposition member of the Dáil). Again, I’m not saying that the law is perfect – the controversy has highlighted some areas for procedural change in particular (I taught a course on entertainment law last year – and hereby offer my free services to any official body in Ireland that wants some suggestions).  Nor am I unsympathetic to the disappointed ticket-buyers (not least because, having been a teenager in 1990s Ireland, I truly understand that he has a serious fan base – in my day, local radio playlisters first and foremost). But for a licensing system to have credibility, responsible authorities have to be able to say no as well as yes; the sale of tickets for what is at the time an unlicensed event shouldn’t affect this. So while it can be tempting to call for a new law, that also deserves proper consideration – of models from other jurisdictions, for example.

Fortunately, despite a lot of posturing, the Irish parliament didn’t go down that route, and it looks like the concerts aren’t happening at all.  Here are some interesting things to read on the topic: Fergal Davis, Rebecca Moynihan & Jane Horgan-Jones, Gene Kerrigan.

Programme for Media & Communications Law at SLS 2014

This is my third and final year as convenor of the Media & Communications subject section of the Society of Legal Scholars.  Here’s the programme for the section’s stream at this year’s annual conference, being held in Nottingham in September.  Registration is now open (with early booking discount until the end of July).

1: Tuesday 9th September, 2-3.30pm (Defamation Reform)

1A The Defamation Act 2013: We Need to Talk about Corporate Reputation – Peter Coe (Buckinghamshire New)
1B Qualified Privilege in Defamation and the Evolution of the Doctrine of Reportage – Sarah Gale (City)
1C Five Years After Grant: The Scope of Canada’s Responsible Communication Defence - Hilary Young (New Brunswick)

2: Tuesday 9th September, 4-5.30pm (Rights and Theory)

2A Liberty and the Press – Paul Wragg (Leeds)
2B The Finnish model of media self-regulation and freedom of speech from the legal point of view – Päivi Korpisaari (Helsinki)
2C How to be Positive: Respecting and Protecting Free Speech – Andrew Kenyon (Melbourne)

3: Wednesday 10th September, 9.30-11am (Broadcasting and Competition)

3A Strasbourg’s U-turn on political advertising bans in the broadcast media: Animal Defenders International v United Kingdom – Tom Lewis (Nottingham Trent)
3B The EU and Public Service Broadcasting: From Foes to Friends? – Irini Katsirea (Middlesex)
3C ‘Deciding who Decides’: Is Ofcom best-placed to rule on UK media ownership? – David Reader (UEA)

4: Wednesday 10th September, 2-3.30pm (Internet)

4A The Get Guido clause? A comparative analysis of online news regulation in the UK and Australia – Denis Muller (Melbourne) and Judith Townend (City)
4B U and non-U tube: creativity, reputation and Internet take-down - Alan Durant (Middlesex)
4C U. S. Constitutional Protections Under the 1st Amendments, Differences Between States – Clifford Fisher and Saran Mishra (Purdue)

All change please, all change

Three job-related announcements.

1. The University of Edinburgh has advertised a post (Lecturer or Senior Lecturer) in “digital media law”.  As you will see from the job description, there are a number of specific research and teaching needs, although digital media is to be broadly understood. The person appointed will be a part of the SCRIPT research centre and the IP, Media and Technology subject area at the Edinburgh Law School.

2. If you know me, the job description will sound not a million miles from what I do at the moment. And my name doesn’t appear on the list of people the successful candidate would work with. So it might not come as the greatest of surprises for me to say that I am leaving Edinburgh this summer, to take up a post as a Reader in Law at Newcastle University (specifically, Newcastle Law School).

3. Newcastle itself has advertised a further group of jobs.  Three lectureships and a teaching fellowship. For the lectureships, there are particular needs at present in commercial law, land law/equity, criminal law, and maritime law.

SLS Media & Communications Section: Call for Papers 2014

Due to issues with the SLS email system, the deadline is now 4th April.

This is a call for papers for the Media & Communications section of the 2014 SLS Annual Conference to be held at the University of Nottingham from 9th – 12th September.  The overall theme of the conference this year will be ‘Judging in the 21st Century’. Calls from other subject sections are also available.

This section will meet in the first half of the conference on Tuesday 9th and Wednesday 10th September (Section A).  If you are interested in presenting a paper, please e-mail a proposed title and short abstract to me at daithi.mac.sithigh AT ed.ac.uk by Monday 17th March 4th April. Proposals are invited on any issue relating to media and communications law, including those addressing this year’s conference theme.  Last year’s conference saw a very wide range of papers presented in this section, at well-attended sessions, and proposals are welcome from scholars at all stages of their careers.

Academic papers are invited on any area of media and communications law, including (but not limited to):

  • the regulation of broadcasting (in the UK, Ireland and/or elsewhere)
  • defamation and reputation, including the Defamation Act 2013
  • privacy / breach of confidence
  • freedom of expression and information in the context of media and communications (for example, content regulation)
  • advertising, sponsorship and promotion
  • regulatory challenges associated with new or emerging forms of distribution
  • telecommunications law and policy
  • media ownership and pluralism
  • the debate on forms of press regulation
  • competition and the media and communications industries
  • the laws, practices and codes affecting journalism (e.g. contempt of court, subterfuge, court reporting, recognition/status of journalists)
  • the control of marketing, advertising, and sponsorship
  • contract and rights issues affecting the media and communications sectors
  • universal design / access in relation to communications

As the SLS is keen to ensure that as many members with good quality papers as possible are able to present, speakers are strongly discouraged from presenting more than one paper at the conference. With this in mind, I would be grateful if you could let me know if you are also responding to calls for papers from other sections.

Please note that whilst you need only send a proposed title and abstract at this stage, speakers are encouraged to submit a full paper to the SLS paperbank before the conference.   The SLS offers a Best Paper Prize which can be awarded to academics at any stage of their career.  The Prize carries a £250 monetary award and winning papers are published in Legal Studies.  Further details about the Prize are available here. The following three conditions must be met: (1)  all authors must be fully paid-up members of the SLS; (2) the paper must have not been published previously or have been accepted or be under consideration for publication; (3) the paper must not exceed 10000 words.

All speakers will need to book and pay to attend the conference.  Booking information will be circulated in due course. If your participation in the conference is dependent on funding and/or a visa, I would be very grateful if you could let me know at an early stage.

I look forward to your proposals, but please do not hesitate to contact me if I can be of any assistance, or to discuss a proposal in advance of formal submission.

Regards,

Daithí Mac Síthigh
Convenor, Media & Communications Subject Section

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).