Thursday, February 26, 2015

School Admissions and the Equal Status Act


I have written a short piece for the Irish Times concerning school admissions and the Equal Status Act.  The article has been published here.  I may in due course develop this into a longer article for a journal in which I can provide evidence for each aspect, and tease out the issues in more depth. 

Some extra points:

The Supreme Court case is Stokes v Christian Brothers High School [2015] IESC 13.

My article only discusses the main judgment in the case, agreed by three judges. It does not discuss the other judgment in the case, in which two judges found that the Supreme Court did not have jurisdiction to hear an appeal in a case such as this.

The Equality Authority appeared as amicus curiae in this case.  See the press release of the Irish Human Rights and Equality Commission (which replaces the Equality Authority). 

Aisling Twomey writes in the Irish Examiner about how travellers would thrive if they were given the opportunity

The earlier stages  are as follows:
Commentary on the High Court stage:
  • Olivia Smith, ‘Perpetuating Traveller children’s educational disadvantage in Ireland: Legacy rules and the limits of indirect discrimination’ (2014) 14 International Journal of Discrimination and the Law 145 (Sage Journals)
  • Mel Cousins, "Travellers, equality and school admission in the High Court: Stokes v Christian Brothers High School Clonmel" - http://works.bepress.com/mel_cousins/22
  • Page at Northern/Irish Feminist Judgments Project 
 I previously posted on travellers in County Clare and the Equal Status Act.






Thursday, February 12, 2015

Gender Equality in Promotions

The case of Dr Micheline Sheehy Skeffington, who successfully claimed gender discrimination concerning the senior lecturer promotions process in NUI Galway, has been widely reported in the media.  This case illustrates a number of key aspects of employment equality law, and I am currently discussing it in my Employment Law classes.  The full decision - DEC-E2014-078 - is available here and I would urge those interested to read the case in full.  By way of background, for those unfamiliar with employment equality law, a quick summary of the Irish legislation is here.  Some key principles to bear in mind are the differences between direct and indirect discrimination and the meaning of objective justification in s.22 of the 1998 Act as amended.  The current version of the legislation is here.

There is no need to prove an intention to discriminate under the Act.  Once an employee produces prima facie evidence of gender discrimination, the burden moves to the employer to prove that it did not discriminate.  The ground relied upon need not be the only or indeed the dominant reason for the impugned decision. It is sufficient if the discriminatory ground is anything other than a trivial influence in that decision.  At the initial stage, the employee is merely seeking to establish a prima facie case. It is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.  It has been noted that "discrimination is usually covert and often rooted in the subconscious of the discriminator. …the court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution."  (Nevins, Murphy, Flood v Portroe Stevedores - EDA051 - [2005] ELR 282). 

The decision includes detailed discussion of the procedure and scoring in the promotions round in question.  For purposes of my classes, I chose to highlight the following selected aspects (to understand all of these fully, you need to read the full case):
Prima facie evidence of direct discrimination in Sheehy Skeffington case (para. 4.3):
  • No training for interviewers
  • No marking schemes
  • One male promoted even though not eligible 
  • Only one woman on interview board of 7 people
  • Registrar on interview board and involved in appeal
  • Three successful males had less than minimum contact hours 
  • Dr Sheehy Skeffington had supervised more PhDs than anyone else
  • Some males received higher marks for contribution to School, etc., in anomalous manner
 Cumulatively, these were prima facie evidence of discrimination.

The employer provided rebuttals to many of these points (see paragraphs 3.1 to 3.12).  The Equality Tribunal responded to these rebuttals by making various points, which included the following:

  • Statistical evidence showed women had a very low success rate in promotions.  From 2001 to 2009, men had a one in two chance being promoted; women had only a one in three chance.  
  • The female candidate with the most glowing references was unsuccessful and came fourth last
  • Dr Sheehy Skeffington had published well and had a fair record of grant funding   
The Tribunal therefore found that there had been direct discrimination on grounds of gender.

As regards indirect discrimination, the application form for promotions asked people to state when they were on maternity leave or other unpaid leave so that it could be discounted.  The Tribunal dealt with this issue as follows (see para. 4.6) :
  • Males left this bank; Four females filled it in 
  • The three females who left it blank ranked highest  
  • The majority of female applicants drawing attention to their caring responsibilities outside the workplace disadvantaged them against the male applicants  
  • The inclusion of the question on the form was a legitimate aim but it was not appropriate or necessary
The Tribunal therefore also found indirect discrimination.

The tribunal ordered that Dr Sheehy Skeffington be promoted to the post and awarded €70,000 compensation.  It also ordered that the employer conduct a review of its policies and procedures in relation to promotion to Senior Lecturer to ensure that they are in compliance with the Acts with particular reference to the gender ground. A report on progress of this review must be made to the Irish Human Rights and Equality Commission within one year.

Declaration of Interest: I am a male university lecturer.  I have attempted to highlight the grounds on which this case succeeded, for the information of readers of this blog. The employer's perspective is summarised fully in the case, but most of the employer's arguments were rejected by the Tribunal. 

Comments:  This case is best understood in the context of the principles established in earlier case-law, some of which are outlined above and in the full decision.  The Tribunal is not stating that if fewer women than men are promoted this automatically shows discrimination.  But since there were so many defects in procedure and anomalies in scoring, the statistics constituted evidence of direct discrimination.  It is also important to note that it was the cumulative impact of the various defects that lead to the prima facie evidence of discrimination. There will be those who will argue (as some students often do) that defects in procedure should not lead to findings of substantive breach.  However, if this does not happen, then the law is effectively providing a licence to breach procedure and sending a message that such procedures are unimportant.
As regards asking people to state if they had been on maternity leave, etc., this is only a minor aspect of the case and it is debatable whether this would always be discriminatory.  

On a related note, I spent a fascinating two days at the recent feminist judgments workshop here in UCC and look forward to reading the book which will result. 

Media stories on the Sheehy Skeffington case are available by doing web searches such as this








Tuesday, December 30, 2014

Mental Health, Criminal Law and Risk of Harm

Website of the Central Mental Hospital
The recent tragic case of stabbings in Cobh, Co. Cork, highlights the treatment of those with mental health issues by the criminal justice system.

This is a complex area and further details may be found in some of the source materials referred to at the end of this blog post.

The Criminal Law (Insanity) Act 2006 introduced major changes in Irish law concerning mental health  and criminal law.  For example, it changed the verdict in some of these cases from 'guilty but insane' to 'not guilty by reason of insanity'.  In order for such a verdict to be reached, the Act requires the following:  

(a) the accused person was suffering at the time from a mental disorder, and

(b) the mental disorder was such that the accused person ought not to be held responsible for the act alleged by reason of the fact that he or she—

(i) did not know the nature and quality of the act, or
(ii) did not know that what he or she was doing was wrong, or
(iii) was unable to refrain from committing the act,
the court or the jury, as the case may be, shall return a special verdict to the effect that the accused person is not guilty by reason of insanity.


According to media reports in this case, it appears that such a verdict was returned regarding this individual (Mr Michael Greaney) in 2013.

Under the 2006 Act, if such a verdict is returned, the judge does not automatically send the person for mental health treatment.  Instead, the person may be sent to the Central Mental Hospital (CMH) for assessment to see if the person requires treatment.  The emphasis switches at this stage from the person's mental health on the day of the act to their health at the time of assessment.  A person's mental health may fluctuate enormously from month to month (or even from day to day).

Depending on the assessment, the judge can then either order that the person be detained in the Central Mental Hospital or discharged.  In this case, it appears that the judge ordered that the person be discharged, on condition that he live away from the family home.  That condition was later lifted by the court.

If the judge ordered that the person be detained at the Central Mental Hospital, the question of the person's release would be in the hands of the independent Mental Health (Criminal Law) Review Board.  This board has 4 members (listed here) and usually 3 members sit on a hearing to review a particular case. There are approximately 110 hearings per year.  Each case is reviewed every six months and the person will be represented by a solicitor.  A person could also be temporarily released by the CMH under s.14 of the 2006 Act (which does not require approval by the Review Board).

A decision made by a judge to release a person (or to put it another way, not to order that they be treated in the CMH) would be made based on psychiatric evidence of the risk they pose at the time of the assessment.  Assessment of risk is a difficult matter and it is impossible to predict risk of harm with high levels of accuracy.  As a society, it is important that we strike a fair balance between detaining those who may pose a risk to the community and recognising that a person with significant mental health issues may not have been criminally responsible for their actions. The current law attempts to strike that balance as best it can, with advice from medical experts.  This law is in fact of need of reform to strengthen the rights of the individuals concerned, e.g. there is a need for more frequent reviews of detention by the Review Board as the cases of those detained under the civil legislation - the Mental Health Act 2001 - are reviewed more frequently. The law also urgently needs to be changed to remove the "insanity" label from such individuals, a label which is entirely inappropriate and anachronistic. 


Source Materials

Barry Roche - Irish Times coverage  

Muiris Houston in Irish Times

Ralph Rigel - Irish Independent coverage 

Irish Examiner coverage

T.J. McIntyre, Sinead McMullan & Seán Ó Toghda, Criminal Law, 3rd ed. (Dublin: Round Hall, 2012)

Darius Whelan, Mental Health Law and Practice: Civil and Criminal Aspects (Dublin: Round Hall, 2009)

Liz Campbell, Shane Kilcommins & Catherine O'Sullivan, Criminal Law in Ireland: Cases and Commentary (Dublin: Clarus Press, 2010)

Darius Whelan, annotations of Criminal Law (Insanity) Act 2006 and 2010, available in Westlaw IE database

Citizens' Information - Criminal Insanity and Mental Health

Website of Mental Health (Criminal Law) Review Board

Full text of Criminal Law Insanity (Act) 2006 as amended by Criminal Law (Insanity) Act 2010

Darius Whelan, slides on Criminal Law (Insanity) legislation

Mental Health Commission, Forensic Mental Health Services for Adults in Ireland, Position Paper, 2011

Mental Health Reform submission


Wednesday, December 10, 2014

Capacity Bill and Prime Time programme


Cross-posted from Irish Mental Health Lawyers Association:


Implications of the Assisted Decision-Making (Capacity) Bill 2013 for Vulnerable Persons in Congregated Settings

Submissions by The Irish Mental Health Lawyers Association on the Assisted Decision–Making (Capacity) Bill were made to the Department of Justice on the 30th of October 2013.

The Prime Time programme aired last night on the treatment of vulnerable persons in the care of the HSE at Áras Attracta highlights the urgent need for the Assisted Decision-Making legislation to be implemented as a matter of urgency. We and other organisations have made submissions in relation to appropriate deprivation of liberty safeguards which we consider should have been included in the Bill. An extract from our submissions are set out below.

We consider that it is necessary at this time, to emphasise that there must be appropriate legal mechanisms in place to ensure there is proper oversight of vulnerable adults in care, who cannot speak for themselves and who are entitled to be afforded their basic human rights. Legal mechanisms such as deprivation of liberty safeguards can serve to shine a light on poor practice and unlawful acts. We also consider that it is of the utmost importance that serious consideration is given to the immediate implementation of the Personal Advocacy Service provisions of the Citizens Information Act 2007. 

EXTRACT FROM SUBMISSION

1.    Reviews of detention of persons who lack capacity admitted to residential centres other than approved centres.
The Bill does not fully resolve the issue of people who lack capacity and are admitted to a residential centre on a "voluntary" basis but are de facto detained in the centre.  This is an issue which arises in residential settings such as nursing homes, social care institutions and centres for people with disabilities.  Ireland is not directly tackling the problem of the "Bournewood gap" and ECHR case-law such as H.L. v UK; Stanev v Bulgaria; D.D. v Lithuania and other cases.

Recommendation
The IMHLA recommends that the Bill should state that if a person is being admitted to any residential centre, this can only occur on a voluntary basis, where the person has capacity to consent to such admission and does consent to such admission.  Capacity to consent should be assessed appropriately. 

Áine Hynes, IMHLA                    Phone 01 6779097

10 December 2014

Full IMHLA Submission on Bill





Thursday, August 28, 2014

Events in September 2014 and after

CC BY ncarey 
I've updated the list of Irish Law events at www.irishlaw.org/events/

Here's the current listing of events:

Part 1 - EVENTS

Thu. 4 Sept. 2014:
Judges, Politics and the Irish Constitution, Dublin City University
Details at http://www.dcu.ie/humanities_and_social_sciences/news/LGConference.shtml

Thu.-Fri. 4-5 Sept. 2014:
Redefining Adoption in a New Era: Opportunities and Challenges for Adoption Law and Social Work Practice - Jointly Hosted By Faculty of Law & School of Applied Social Studies, University College Cork
Details at http://www.ucc.ie/en/lawsite/eventsandnews/

Thu. 25 Sep 2014:
The Medical Negligence Litigation Conference, CMG Events, Dublin
http://www.cmgevents.ie/events/medical-negligence-litigation-conference-2014

Fri. 17 Oct. 2014:
Youth Justice Transformation - Association for Criminal Justice Research and Development annual conference, Dublin
Details at http://www.acjrd.ie/contents/249

Thu. 23 Oct. 2014:
Research Methodologies in Law conference, University of Limerick
http://www.ul.ie/law/news/conference-research-methodologies-law

Fri.-Sun. 7-9 Nov. 2014:
Making an Impact: Can Legal Academics Make a Real Difference? Irish Association of Law Teachers Annual Conference, Kilkenny.
Details at http://www.ialt.ie/event/ialt-annual-conference-2014

Part 2 - LAW SOCIETY PROFESSIONAL DIPLOMAS AND CERTIFICATES

19 Sept. 2014 to June 2015:
Diploma in Law, Law Society Diploma Centre, Dublin and webcast
http://www.lawsociety.ie/diplomalaw/

24 Sep 2014 to January 2015:
Certificate in Legal French, Law Society Diploma Centre, Dublin
http://www.lawsociety.ie/A14-Certificate-in-Legal-French.aspx#.U-Dja5RdUud

1 Oct 2014 to March 2015:
Certificate in Commercial Contracts (iPad), Law Society Diploma Centre, Dublin and webcast
http://www.lawsociety.ie/A14-Certificate-in-Commercial-Contracts-iPad.aspx#.U-Dj5ZRdUud  

2 Oct 2014 to March 2015:
Certificate in Conveyancing and Property Law, Law Society Diploma Centre, Dublin and webcast
http://www.lawsociety.ie/A14-Cert-in-Conveyancing-and-Property-Law.aspx#.U-DnbJRdUud  

2 Oct 2014 to January 2015:
Certificate in Aviation Leasing and Finance Law, Law Society Diploma Centre, Dublin and webcast
http://www.lawsociety.ie/A14-Certificate-in-Aviation-Leasing-and-Finance.aspx#.U-Dn4pRdUuf  

3 Oct 2014 to December 2014:
Certificate in Advanced Negotiation, Law Society Diploma Centre, Dublin and webcast
http://www.lawsociety.ie/A14-Cert-in-Advanced-Negotiation.aspx#.U-DoNpRdUud  

4 Oct 2014 to May 2015:
Diploma in Arbitration Law, Law Society Diploma Centre, Dublin and webcast
http://www.lawsociety.ie/A14-Diploma-in-Arbitration.aspx#.U-C47JRdUud  

7 Oct 2014 to April 2015:
Corporate Law and Governance, Law Society Diploma Centre, Dublin and webcast
http://www.lawsociety.ie/A14-Diploma-in-Corporate-Law-and-Governance.aspx#.U-C-2ZRdUud  

7 Oct 2014 to April 2015:
Diploma in Insolvency and Corporate Restructuring (iPad,) Law Society Diploma Centre, Dublin and webcast
http://www.lawsociety.ie/A14-Diploma-in-Insolvency-and-Corporate-Restructuring-iPad.aspx#.U-DCLZRdUud

8 Oct 2014 to May 2015:
Certificate in Trade Mark Law (iPad), Law Society Diploma Centre, Dublin and webcast
http://www.lawsociety.ie/A14-Certificate-in-Trade-Mark-Law-iPad.aspx#.U-Dor5RdUuc  

9 Oct 2014 to April 2015:
Diploma in Mediation Law Society Diploma Centre Dublin and webcast
http://www.lawsociety.ie/www.lawsociety.ie/A14-Diploma-in-Mediation.aspx#.U-DFSpRdUud  

14 Oct 2014 to April 2015:
Diploma in Finance Law, Law Society Diploma Centre, Dublin and webcast
http://www.lawsociety.ie/Diploma-in-Finance-Law.ASPX#.U-Da2ZRdUud  

15 Oct 2014 to April 2015:
Diploma in Investment Funds and Compliance, Law Society Diploma Centre, Dublin and webcast
http://www.lawsociety.ie/A14-Diploma-in-Investment-Funds-and-Compliance.aspx#.U-DbSpRdUue  

16 Oct 2014 to April 2015:
Diploma in Family Law, Law Society Diploma Centre, Dublin and webcast
http://www.lawsociety.ie/A14-Diploma-in-Family-Law.aspx#.U-DcUZRdUud

21 Oct 2014  to April 2015:
Diploma in Commercial Litigation (iPad), Law Society Diploma Centre, Dublin and webcast
http://www.lawsociety.ie/A14-Diploma-in-Commercial-Litigation-iPad.aspx#.U-Dd5pRdUud  

5 Nov 2014 to April 2015:
Certificate in Human Rights Law, Law Society Diploma Centre, Dublin and webcast
http://www.lawsociety.ie/www.lawsociety.ie/A14-Cert-in-Human-Rights.aspx#.U-DpXpRdUud

8 Nov 2014 to April 2015:
Diploma in Taxation for Legal Professionals, Law Society Diploma Centre, Dublin and webcast
http://www.lawsociety.ie/A14-Diploma-in-Taxation-for-Legal-Professionals.aspx#.U-Dh8JRdUue



Thursday, August 14, 2014

World Intermediary Liability Map - Ireland Entry

I have contributed the Irish entry to the new World Intermediary Liability Map (WILMap) at Stanford Law School Center for Internet and Society (CIS).

The WILMap educates the public about evolving Internet regulation affecting freedom of expression and user rights worldwide. It is managed by Giancarlo Frosio, the Intermediary Liability Fellow at CIS.
The map is a detailed English-language resource comprised of case law, statutes, and proposed laws related to intermediary liability worldwide. It allows visitors to the CIS website to select information on any country of interest through a graphical user interface.

The full entry on Ireland which I contributed is Creative Commons licensed and is available here.

An edited version appears below:

WILMAP: IRELAND



LEGISLATION

[A report by an expert committee on reform of copyright law, including a draft Bill. Includes proposals concerning intermediaries, e.g.  (1) that a “marshalling” exception be introduced for sites which index, syndicate, aggregate or curate online content and (2) that certain sections of the Copyright and Related Rights Act 2000 concerning transient and incidental copies be amended to come more closely into line with the CJEU’s approach to interpretation of the Information Society Directive.] 
[The Privacy Bill was published by the previous Government in 2006 but has not been enacted.  In 2012, the Minister for Justice stated that he was considering re-introducing a version of this Bill.]  

DECISIONS

SUPERIOR COURTS

Supreme Court, EMI v Data Protection Commissioner [2013] IESC 34 
[copyright, privacy, data protection, graduated response]
[A settlement had been reached between record companies and a large ISP, Eircom, instituting a Graduated Response Protocol under which Eircom would issue copyright infringement notices to customers.  The Data Protection Commissioner believed that this Protocol breached EU and Irish data protection law and issued an enforcement notice requiring Eircom to cease its operation of the Protocol. The Supreme Court found that the enforcement notice was invalid because of the absence of reasons.]

LOWER COURTS

High Court, Schrems v Data Protection Commissioner [2014] IEHC 310 
[privacy, data protection, Facebook, transfers of personal data to USA]
[(1) The Data Protection Act 1988 as amended prohibits transfers of personal data outside the state unless adequate privacy protections are in place.  In 2000, the European Commission had decided that the USA ensured an adequate level of privacy protection for data.  A Safe Harbour framework had been put in place between Europe and the USA regarding transfers of personal data.
(2) In light of the Snowden revelations, Mr Schrems, an Austrian lawyer who runs the “Europe v Facebook” group, made a complaint to the Data Protection Commissioner arguing that the Commissioner should direct that transfers of personal data from Facebook Ireland to Facebook in the USA should cease.  Facebook Ireland is responsible for millions of Facebook users outside the USA and Canada.
(3) The Commissioner decided that the request was unsustainable in law.  Mr Schrems sought Judicial Review of the Commissioner’s decision.  
(4) In the High Court, Hogan J. said that much had changed since 2000, including for example the entry into force of the EU Charter of Fundamental Rights.  As a result, he referred questions of EU law to the Court of Justice of the EU (CJEU).  He also noted that mass and indiscriminate surveillance of communications as shown by the Snowden revelations would, as a matter of Irish law, be unconstitutional, but that Irish law on this matter had effectively been pre-empted by EU law.]  
High Court, Schrems v Data Protection Commissioner (No.2) [2014] IEHC 351
[privacy, data protection, Facebook, transfers of personal data to USA, amicus curiae]
[The High Court ordered that Digital Rights Ireland (DRI) be added as amicus curiae in the proceedings, which will now proceed to the CJEU.  DRI had stated that it would not adopt a position of partisanship. Hogan J. distinguished this case from the case of EMI v UPC [2013] IEHC 204, where DRI was not added as amicus curiae. The court also noted DRI’s successful case before the CJEU – Case 293-12, Digital Rights Ireland v Minister for Communications ECLI:EU:C:2014:238. The court did not permit DRI as amicus to alter the nature of the questions which it had already proposed should be transmitted to the CJEU.] 
High Court, Cummins v Twitter, February 2014 
[defamation, libel, hosting provider, Twitter]
[The High Court ordered that Twitter remove defamatory posts concerning the mayor of Waterford.  The order was made under s.33 of the Defamation Act 2009.]  
High Court, EMI v UPC [2013] IEHC 274
[copyright, access provider, ISP, torrent, ThePirateBay, blocking order]
[Record companies successfully applied for an order against various ISPs blocking access to the Pirate Bay website, based on the amended s.40 of the Copyright and Related Rights Act 2000. Later in 2013, the record companies successfully applied to the High Court for Kickass Torrents to be blocked.]
High Court, EMI v UPC [2013] IEHC 204
[copyright, access provider, ISP, torrent, ThePirateBay, blocking order, amicus curiae]
[Record companies had instituted proceedings seeking an order against various ISPs blocking access to the Pirate Bay website.  Digital Rights Ireland (DRI) applied to be added as an amicus curiae.  The Court refused to add DRI to the case.  Considering Irish cases on criteria for joining an amicus curiae, the court found that this case did not involve novel principles and DRI was not a neutral party.]  
High Court, Tansey v Gill [2012] IEHC 42
[defamation, hosting provider, preliminary injunction, interlocutory order]
[The plaintiff claimed he had been defamed on the website www.rate-your-solicitor.com.  He successfully sought interlocutory orders under s.33 of the Defamation Act 2009 against certain defendants prohibiting publication of the defamatory statements.  The court noted that, since the arrival of the internet, judicial hesitation in granting interlocutory orders of this type should be eased. One of the defendants was the host of the website, Dotster, located in the USA.  Dotster had not made an appearance in the case and the court made a final order in default of appearance.]   
High Court, McKeogh v Doe [2012] IEHC 95 
[defamation, privacy, right to good name, video removal, Norwich Pharmacal orders.]
[The plaintiff had wrongly been identified as the taxi fare evader shown in a video posted on various websites.  The judgment primarily concerns the issue of whether the plaintiff could be named on newspaper websites reporting the court case and the court ordered that he could be named.  The court noted that it had earlier granted interim orders that social media sites such as YouTube and Google should remove the video and provide the identities of web users who had defamed the plaintiff.  The orders regarding identities of web users were granted applying the UK tort case of Norwich Pharmacal v Customs & Excise [1973] UKHL 6. According to media reports, there have been further developments in this case in 2013 and 2014.] 
High Court, EMI v UPC [2010] IEHC 377 
[copyright, access provider, mere conduit, ThePirateBay, E-Commerce Directive]
[Record companies sought orders (1) restraining UPC, an ISP, from making available to the public copies of sound recordings which breach copyright and (2) requiring UPC to block access to the Pirate Bay site. The court found that s.40(4) of the Copyright and Related Rights Act 2000 only covered “removal” of infringing material and therefore an injunction could not be granted.  Charleton J. also reconsidered his previous decision in EMI v Eircom [2009] IEHC 411 (see below), in which he granted an order requiring an ISP to block access to the Pirate Bay, and stated that his previous decision in that case had been incorrect. Following this case, s.40 of the 2000 Act was amended by Statutory Instrument in 2012 (see above).] 
[privacy, data protection, data retention, access providers, ISP, telephony providers, Directive 2006/24/EC, referral, ECJ, invalidity]
[This litigation concerned the validity of the data retention requirements imposed on ISPs and telephony providers. This case led to a decision by the CJEU (Grand Chamber) that the Data Retention Directive (Directive 2006/24/EC) was invalid, Case 293-12, Digital Rights Ireland v Minister for Communications ECLI:EU:C:2014:238.]
High Court, EMI v Eircom [2010] IEHC 108  
[copyright, data protection, graduated response]
[Record companies had reached a settlement with a large ISP (Eircom) instituting a graduated response system.  Charleton J. held that the settlement did not breach data protection laws as IP addresses in the hands of the record companies which do not identify subscribers are not “personal data”. He said that copyright is flagrantly violated by music theft and the sanction of terminating access is not excessive. Eircom’s terms and conditions stated that copyright must not be infringed and subscribers have agreed to these terms.]
High Court:  Irish Red Cross v UPC and Google (Unreported, 2010) [see news coverage here and here]
[confidentiality, breach, privacy, disclosure, alleged infringer, hosting provider, blog, liability of blog host]
[According to website reports, it appears that the High Court ordered that UPC and Google reveal the name of an anonymous blogger who allegedly breached confidentiality on the Blogger website.  Originally Google Ireland was named as defendant but the court permitted Google Inc to be substituted.] 
High Court, EMI v Eircom [2009] IEHC 411
[copyright, access provider, ISP, torrent, ThePirateBay, website blocking order, graduated response]
[Record companies had reached a settlement with a large ISP (Eircom) instituting a graduated response system. The court ordered, on application by the record companies, that Eircom should block access to the Pirate Bay website. The court based its decision on s.40(4) of the Copyright and Related Rights Act 2000 and the Information Society Directive 2001.]  
High Court, Mulvaney v Sporting Exchange trading as Betfair [2009] IEHC 133 
[defamation, libel, hosting provider, gambling, chatroom, forum, E-Commerce Directive, hosting defence]
[Betfair was a gambling site which also operated internet forums (chatrooms) where users could discuss sports events and other issues. The plaintiffs alleged defamation by forum users. As a preliminary issue, Betfair successfully relied on the hosting defence in the E-Commerce Directive as implemented by the 2003 Regulations. The court found that the gambling exception to the Directive and Regulations did not apply as the forums were not directly connected to the gambling part of the site.] 
High Court, Ryanair v Johnston, 2005/514P, July 12, 2006 
[bullying, intimidation, privacy, hosting provider, bulletin board, website operator, moderator, members, liability, disclosure, identities, alleged infringers, Norwich Pharmacal order]
[This was an action against the operators and moderator of an internet site and bulletin board set up to facilitate discussions by Ryanair pilots.  Ryanair alleged that bullying and intimidation of pilots was taking place on the site and sought ‘Norwich Pharmacal’ orders to disclose the identities of certain users of the bulletin board. On reviewing the evidence, Smyth J. found that there was no evidence of bullying or intimidation or that Ryanair had suffered loss. He distinguished this case from EMI v Eircom, 2005 (see below) and the English case of Totalise v Motley Fool [2001] EWCA Civ 1897.  He also stated that a balance needed to be struck between justice and privacy.]   
High Court, EMI v Eircom [2005] IEHC 233 
[copyright, privacy, confidentiality, access provider, disclosure, identities, alleged infringers, Norwich Pharmacal order]
[Record companies requested Eircom, a large ISP, to provide identities of 17 customers who were allegedly infringing copyright. The High Court ordered that customers’ identities should be passed to the ISP, based on the UK tort case of Norwich Pharmacal v Customs & Excise [1973] UKHL 6. The court also relied on the Canadian case of BMG Canada v Doe 2004 FC 488.] 

OTHER RESOURCES

A Guide to the European Communities (Directive 2000/31/EC) Regulations 2003, http://www.djei.ie/publications/trade/2003/ecommercedirectiveguide.doc
Data Protection Commissioner, www.dataprotection.ie
Data Protection Commissioner, Final report of Audit of Facebook Ireland (2011) and Facebook Ireland Audit Review Report (2012), http://dataprotection.ie/docs/Facbook-Audit/1290.htm 
Digital Rights Ireland, http://www.digitalrights.ie
Information Technology Law in Ireland – Denis Kelleher and Karen Murray, http://ictlaw.com
Information Technology Law in Ireland – TJ McIntyre Blog, http://www.tjmcintyre.com
Internet Content Governance Advisiory Group, Report of the Internet Content Governance Advisory Group (2014), http://www.dcenr.gov.ie/NR/rdonlyres/0BCE1511-508E-4E97-B1A9-23A6BE9124A...
Internet Hotline, www.hotline.ie  
Joint Committee on Transport and Communications, Addressing the Growth of Social Media and Tackling Cyberbullying (2013), www.oireachtas.ie/parliament/media/Report-on-Social-Media-July-2013-Webs...
Office for Internet Safety, http://www.internetsafety.ie

CONTRIBUTORS

Darius Whelan
Lecturer in Law, University College Cork  
Email: d.whelan@ucc.ie 







Monday, August 04, 2014

Update on Migrant Workers and Employment Law

Muhammad Younis.  Picture by RTE.  
In 2012, I blogged about the important decision of Hussein v The Labour Court [2012] IEHC 364.  There have been developments recently which have led me to update this post as follows.  The developments are:

  • Enactment of the Employment Permits (Amendment) Act 2014 - see end of blog post below.
  • The UK Supreme Court decision in Hounga v Allen - see the fourth bullet below.
Here's the revised blog post in full: 


In a very important decision in 2012, Hussein v The Labour Court [2012] IEHC 364, Hogan J. found that a migrant worker (Mr Muhammad Younis) who had been exploited by his employer could not claim under the working time legislation, minimum wage legislation and the Terms of Employment (Information) legislation.  See news reports at Irish Times and RTE websites.

Liam Thornton has an excellent post over at humanrights.ie summarising the issues, particularly focusing on the international human rights dimension of the case.

Some additional points which have struck me are as follows:
  • Hogan J. says at para. 19 that the Employment Permits Act 2003 contains no saving clause such as obtains in the case of unfair dismissals.  However, the National Minimum Wage Act 2000 does contain a saving clause at s.40.  While it is likely that even if he had referred to this section, he would have reached the same conclusion, it is surprising that he does not explicitly address it.  
  • Hogan J. does not refer explicitly to the significant Irish employment law case of Lewis v Squash Ireland [1983] ILRM 363.  In that case, the Tribunal stated: "It is public policy that the Courts and this Tribunal should not lend themselves to the enforcement of contracts, either illegal on their face or in which the intended performance of obligations thereunder was illegal to the knowledge of the party seeking to enforce the contract" (emphasis added).  Hogan J. could have explored whether he agreed with such a statement of public policy by the EAT, rather than relying entirely on court decisions.  While of course the courts have superior authority to the tribunals, they have also recognised the specialist expertise of such tribunals in the past.
  • Hogan J. also does not refer to Dubyna v Hourican Hygiene  (2005) UD 781/2004, another EAT case in which it was found that a contract in breach of the Employment Permits Act 2003 was enforceable where the employee was unaware of the breach.  Admittedly, the circumstances were quite different but nonetheless it is a more relevant decision than some of those cited in the High Court decision. 
  • As far as I can see, the only English case referred to is from 1957.  There is no reference to the recent Court of Appeal case of Hounga v Allen [2012] EWCA Civ 609 which involved breach of work permits legislation.  While the court did not permit the claim in that case, it allowed for the possibility that in some cases an employee might not be an active participant in an illegality, but instead acquiesce in the state of affairs, in which case she might still claim.  (See Laurie Anstis posting on Daniel Barnett blog here.)  [Update in 2014:  The UK Supreme Court has upheld the appeal against the Court of Appeal decision - Hounga v Allen [2014] UKSC 47 - See Vanessa James posting on Daniel Barnett blog here and Chris Monaghan, 'Hounga v. Allen at the Supreme Court: The defence of illegality in race discrimination cases and the competing public interest in preventing the exploitation of illegal immigrants' (2015) International Journal of Discrimination and the Law. ]
  • I am not entirely comfortable with the idea of the High Court posting copies of its decisions to the Ceann Comhairle, the Cathaoirleach of the Seanad and the Minister for Jobs, Enterprise and Innovation.  I agree that a judge may highlight a possible anomaly in the law, or possible unintended consequences of legislation, and even state that the law should be changed (as happened in the X. case).  But it is unnecessary and perhaps could be misinterpreted for the judge to post the decision to these three people.   They are all surely aware of the decision, as they are aware of all court decisions.  Perhaps I am splitting hairs here?  
[Further Update in 2014 - The Employment Permits (Amendment) Act 2014 will allow a migrant worker in Mr Younis's situation to bring a civil action seeking compensation for work done.  The Act will come into force on a date specified by the Minister. The new Act was welcomed by Migrant Rights Centre Ireland here. However, as the Centre notes, much more needs to be done.  From an employment law perspective, it is unclear to what extent a migrant worker without a work permit could bring an action other than an action seeking compensation for work done. ]