Why Repealing The Human Rights Act Would Break A Promise To Ireland, North & South

agreement

Buoyed by his unexpectedly emphatic victory in the recent general election, UK Prime Minister David Cameron has been returning to some of his more controversial policy ideas, many of which had to be placed on hold for as long as he needed Liberal Democrat support to stay in government. Freed from the shackles of coalition, he has revisited his long-standing pledge to repeal the Human Rights Act. The Act, which incorporates into British law the European Convention on Human Rights, has long been a bete noir of Eurosceptic Tories (and, perhaps significantly, of UKIP voters) who are viscerally opposed to the notion of foreign judges overturning British laws, and who associate it, albeit incorrectly, with the European Union.

In fact, the Human Rights Act is not nearly as powerful as it appears in the imagination of the right-wing press, and the protections it offers can look somewhat feeble to those of us familiar with those available in countries with written constitutions. Nonetheless, the Act is much prized by the UK civil liberties and human rights communities, as a means, however imperfect, of holding the actions of the state up to scrutiny. They are therefore understandably alarmed by Mr. Cameron’s latest plans to scrap it within, he promises, the first one hundred days of his new government.

However there is a much neglected Irish angle to the debate, one which may yet stymie Mr. Cameron’s plans. Though the HRA was a New Labour Manifesto commitment, its passage was hastened by the Good Friday Agreement, which required that “The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency”.

Not only that, but the ECHR is embedded into the very structure of the Northern Ireland Assembly, with all Assembly proposals to be “proofed” against the ECHR prior to their passage. (The Government of Ireland was also required to examine the question of incorporating the ECHR into our law, resulting in the European Convention on Human Rights Act, 2003.)

It would be reassuring to view this neglect of the Northern Irish angle as simply a function of an Anglo-centric Tory party simply forgetting about the concerns of the “Celtic Fringe”. After all, the ECHR is also embedded into the workings of the Scottish and Welsh Assemblies, in much the same ways as in Stormont. Will Mr. Cameron repeal the Human Rights Act in England only, at a time when the concept of the UK as a unified nation is on such unsteady ground? What then of the famous statement by Margaret Thatcher that Northern Ireland was “as British as Finchley”?

More worrying is a document produced in 2000 by the conservative Centre for Policy Studies. Entitled “The Price of Peace”, it denounces the Good Friday Agreement as “a threat not just to the Britishness of Northern Ireland but the British way of doing things…a capitulation to violence, a validation of terrorism…a humiliation of our Army, Police and Parliament. But, worse still, it is a denial of our national integrity, in every sense of the word.

The document specifically objects to human rights element of the Agreement, thundering that it “supplants common sense and common law, and erodes individual dignity by encouraging citizens to see themselves as supplicants and victims to be pensioned by the state”

The author of this jeremiad is none other than Michael Gove, recently appointed Justice Secretary, and the man tasked with the repeal of the Human Rights Act. “The Price of Peace” was written in the immediate aftermath of the Good Friday Agreement, when Mr. Gove was an opposition activist. It is possible that his views have mellowed. He has had ample years to watch the Northern Ireland settlement in operation, and he may he no longer see it as the Blairite stitch-up he describes in “The Price of Peace”. Nonetheless, nobody with a stake in the delicate, complicated and still fragile relationship between these islands can fail to be worried by proposals to tinker with it.

The commitments made by the UK government in 1998 are not to be taken lightly. They were not merely throwaway promises made in order to get a political deal over the line. They were rather necessary and solemn commitments made by the UK Government in the context of a historic settlement. These commitments were made not only to the Government of Ireland, but to the people of Northern Ireland. They were approved by referendums, North and South, and the British-Irish Agreement was deposited with the United Nations as an international treaty.

The Irish Government needs to be very clear that it too has a stake in this historic settlement, and should not allow it to be unpicked, least of all for reasons of domestic political expediency.

Revenge Porn, and the Harmful & Malicious Communications Bill

Labour Party Senator Lorraine Higgins today published the Harmful and Malicious Electronic Communications Bill 2015, her promised legislative proposal to deal with abusive online behaviour. I tend to be sceptical of calls for regulation of the internet, as they are often a mixture of vague griping, unacceptable curtailment of free speech, and criminalisation of things that were already against the law. To her credit, Senator Higgins’ bill is far more focused than anything I’ve seen proposed before, dealing in a specific way with areas which are not already covered by existing law. Though there are elements of it which I consider absolutely unacceptable, in other areas it raises issues that do need to be adressed by the legislature.

The bill creates two offenses, Harmful Electronic Communication, and Malicious Electronic Communications. Malicious Electronic Communications is the offence of persistently sharing malicious electronic communications regarding another. “Malicious” is defined as intentionally or recklessly causing alarm, distress or harm. Where this differs from the already existing offence of harassment is that it relates to communications “regarding” another rather than communications to another. In submissions to the Oireachtas Joint Committee hearing on Social Media, I was at pains to preserve this distinction. A letter, phonecall or email is intimate in nature. A letter, in particular, carries the implied threat of “I know where you live”. It is distrubring to be subject to these kinds of unwanted communications in ways that being communicated about is not. If someone is repeatdly saying hurtful things about you, but not to you, that implied threat is no longer present. There is a world of difference between finding an abusive email in your inbox, and being upset by what you come across while searching Twitter for your name.

Public speech obtains Freedom of Speech protections in a way that unwanted private communications do not. The requirement that these communications be “persistent” makes sense in a harassment context. In the contect of this offence, it is an attempt to limit offensive public speech in crudely numerical terms, allocating a quota of offensiveness (“three srikes and you’re out”, perhaps) to each speaker. Further, it is notable that this section doesn’t require that the malicious statement be untrue. By making distress the yardstick for the offence, it makes Free Speech standards dependent on the thickness of skin of the person being spoken about.

Finally, insofar as this kind of indirect harassment can be criminalised (and, for the reasons I’ve just given, I am not sure that it can), it should be done via an amendment to the existing Harassment offence. Creation of duplicate and near-duplicate offences causes confusion, of which we already have too much in this area.

Harmful Electronic Communication is defined as the causing of alarm, distress or harm to another by sharing communications which incite or encourage another to commit suicide or cause serious harm to themselves, or which include explicit content of the other. A single communication will suffice for this offence. In respect of the inclusion of exhortations to suicide or self-harm, I note that this communication could be said to qualify, as indeed could (NSFW) this one. Again, the weakness here is the failure to distunguish between one-to-one communication and wider publication. This is unfortunate, because the provision regarding explicit content is an attempt to address a genuine legislative need.

Ireland currently does not have adequate legal provsion for “Revenge Porn“, the publication of intimate or explicit images of persons without their consent. Granted, the provision in this bill might benefit from some amendment. The drafting of the bill appears to limit the offence to sending of an image of a person to “the other”, that is to the person in the image herself, which surely cannot have been the intention. Also, there is no provision that the image be taken or shared without consent, though that is perhaps implied by the requirement that the sharing of the image cause alarm, distress or harm. Nonetheless, the creation of an offence of this type may, in principle, be a good idea.

However, what revenge porn victims need is not prosecutions, but a remedy. They need the image removed from the internet, and may be uninterested in seeing the perpetrator punished. Indeed, given the publicity attendant on a criminal trial, it may be the last thing they want. The worst-case scenario for a victim is draw attention to herself via court proceedings, while the image was still widely available online for all to see.

My proposed response to the problem is to use the Data Protection Act, which already allows a person to object to a processing of data (and this would include publication of an image or video) likely to cause distress. At present, the data controller is required to cease the processing within 20 day. Given the speed with which things can go viral, 20 days is no longer a tight enough deadline, and consideration shoudl be given to shortening it. In addition, there is no meaningful sanction for a data controller who fails to act, or to act in time. If companies were to be made liable in the courts for the distress caused by this failure, I suspect they would begin to act very quickly. If they can do it for copyright holders, whose material can now be pulled from the internet within minutes of being posted, they can surely do it for distressed citizens. This would be an elegant solution, offering a remedy to the victim without burdening a stretched police force with additonal time-intesive work.

Nonetheless, there will always be egegious cases where the weight of the criminal law may be the only appropriate sanction. The mere existence of a criminal offence would help to send the message that this is not a bit of laddish fun, but a sexual offence against the person. Senator Higgins’ proposal, despite its flaws, is the first attempt to provide for such an offence, and in that regard it is to be welcomed.

The Brief, Uneventful Life of the Offence of Blasphemy

Nobody in the history of the Irish State has ever been convicted for blasphemy. Why then was it announced this morning that the government has committed to holding a referendum on the removal of the offence of blasphemy from Irish law? If you didn’t know better, you might think it was one of those amusingly archaic statutes we inherited from the British, and which the State occasionally gets around to abolishing. In fact, the offence of publication or utterance of blasphemous matter did not even exist until 2009, and no prosecution was ever attempted. So how did we get here, having to hold a referendum to abolish a law that was introduced only five years before?

Article 40.6.1.i of the Constitution states

The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law.

In the decades that followed the framing of Bunreacht na hÉireann, a draconian censorship regime meant that blasphemy never needed to be prosecuted, because the blasphemous material never saw the light of day in the first place. There was no statutory crime of blasphemy because, even from a religious conservative point of view, there was no need for it. Insofar as an offence of Blasphemy existed, it was the old common law offence, which was undefined, but generally held to apply only to blasphemy against Christianity. Common law blasphemy hadn’t been prosecuted since 1855, when a Catholic priest was hauled before the bench for burning a Protestant Bible, but acquitted because, he said, he hadn’t done it on purpose. The Defamation Act of 1961 provided for punishments for the offence, but failed to define it. Then in 1999, the Sunday Independent, in the aftermath of the Divorce Refendum (with its infamous “Hello Divorce…Bye Bye Daddy” posters), published this cartoon:

Progress

Once can see how a person of a religious disposition might find the cartoon to be a piece of unwarranted gloating by the triumphant forces of secularism. That however is not what bothered one John Corway, a devout carpenter from Nazareth Harold’s Cross. His objection was to the perceived “insult, ridicule and contempt shown towards the sacrament of the Eucharist”.

The matter went to the High Court and thence to the Supreme Court, and in both cases the cartoon was held not to be blasphemous. The Courts reasoning was that “in the absence of any legislative definition of the constitutional offence of blasphemy, it is impossible to say of what the offence of blasphemy consists“.

And for a long time, that was that. Just as well, too, for if the rather mild Sunday Independant cartoon could have been criminalised, who knows what fate might have befallen Father Ted. In 2008, as Minister for Justice tasked with updating the 1961 Defamation Act, the late Brian Lenihan took the view that “In England and Wales blasphemy traditionally only consisted in the scandalising of the established church”. Ireland does not have an established church (though it often seems otherwise) and therefore the minister was sceptical of the possibility or value of defining the offence.

Unfortunately, his successor disagreed. Dermot Ahern, perhaps courting the conservative vote that made up Fianna Fáil’s shrinking core support, took it upon himself to do what had been impossible or unnecessary for the entire history of the Republic, and inserted what became section 36 of the Defamation Act, 2009. Blasphemous material was defined as material “that is grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion”.

Where blasphemy traditonally was an offence against God, this definition was almost politically correct in its emphasis on the hurt feelings of the faithful, whatever their faith might be. It was the replacement of one kind of piety, religious, with another, the modern aspiration that no person be exposed to anything that might upset them. At least the requirement for outrage among a substantial number of adherents was a gesture towards preventing the standard of outrage being defined by fundamentalist minorities.

Despite this very subjective definition, the remainder of the section ensures that a conviction would be all but impossible to secure. Firstly it is necessary that the outrage was caused deliberately. Secondly, it is a full defence to prove that a reasonable person would find genuine literary, artistic, political, scientific, or academic value in the blasphemous matter. So even if you blaspheme on purpose, to make a point about free speech or religion, you are making a political point and accordingly not guilty. Unsurprisingly, section 36 has never been used.

So what harm? Well, it is never healthy to have illiberal laws sitting on the statute books. They are time bombs. Who’s to know that an over-zealous Garda or officious politician won’t one day use the law to harass someone who says something they don’t like. Sure, that person is likely to be acquitted of the offence, but only after being arrested, questioned, prosecuted and put to the expense of defending himself.

The other problem with this law (which was pointed out at the time of its passage) is that it is currently impossible to repeal. The Constitution requires that blasphemy be punished by law. Nobody ever got around to doing this, and we got along just fine. However, once the offence was introduced, any law repealing it would be unsconstitutional.

I am far from convinced that this is the most pressing constitutional issue before the nation today. If, as has been suggested, the the ban on blasphemy is to be replaced with a ban on incitement to religious hatred, such an amendment would only make matters worse. It could copper-fasten the existing offence-based position and I might find myself voting No just to keep the less oppressive status quo. In any case, we already have a Prohitibition of Incitement to Hatred Act, which criminalises the stirring up of hatred against people on account of their race, colour, nationality, religion, ethnic or national origins, membership of the travelling community or sexual orientation. It protects people (or would if it was properly applied) rather than beliefs, and does not need to be supplemented, least of all by way of a constitutional amendment.

However, it would be a sensible piece of house-keeping to simply delete the constitutional requirement, thus allowing Section 39 to be repealed. Moreover, freedom of speech is something that is sadly and perversely neglected as a subject for debate in Irish life. A referendum might be a salutory occasion for such discussion. Of course referendums are expensive. Perhaps we should send Dermot Ahern the bill?

(Updated 1:00pm to address the suggested replacement of blasphemy with incitememnt to religious hatred)

Can You Cause Criminal Damage to a Facebook Account?

Yesterday, it was reported that a man from Donegal had been fined €2,000 for criminal damage, having posted offensive material under the name of an ex-girlfriend on her Facebook account. The Independent reports that:

A local garda told prosecuting counsel Sean Gillane SC that in the early hours of April 6th, 2011, the accused went to her house to confront her over a perceived infidelity. When the accused later left the house, the woman noticed that he had taken her phone.

He went through her text messages which confirmed to him that she was in a new relationship. He then logged into her Facebook from her phone and posted a status update in her name stating that she was “a whore” who would take “any offers.”

Complicating the case is the fact that the man was charged but acquitted of rape and false imprisonment of the woman on the same day. Had the rape prosecution resulted in a conviction, it might have been more appropriate to consider the Facebook incident an aggravating matter of that offence rather than an offence in its own right. However, the man pleaded guilty of the Criminal Damage matter, so there was no opportunity for the court to consider the appropriateness of the offence to the actions in question.

In considering the sentance yesterday, Judge Sheehan sought assistance from prosecuting counsel as to what the appropriate punshment might be.  He asked asked how he was to assess the damage if nothing had physically been broken. Counsel replied that the offence had more in common with harassment than criminal damage. This does seem to raise the question – why was he not charged with harassment? The reason for that is that the offence of harassment requires “persistent” abuse, which suggests that a one-off incident won’t be enough to make out the offence.

The Criminal Damage Act 1991 is generally more concerned with broken windows and arson than with Facebook accounts, though it does helpfully include the following within its definition of “damage”

” in relation to data-

to add to, alter, corrupt, erase or move to another storage medium or to a different location in the storage medium in which they are kept”

You would think, with Data Protection such a concern these days, that this offence would have been more often used. The DPP didn’t dwell much on the data aspect of the case though, and instead emphasised that the damage done to the victim had been primarily reputational (though, confusingly, it was also emphasised that the message was quickly taken down).

The traditional remedy for damage to reputation has been civil rather than criminal, via a suit for defamation. However,  until quite recently, the offence of criminal libel existed (it was abolished under the Defamation Act, 2009), which did provide a mechanism for a defamer to be criminally punished without the defamed having to go to the expense and trouble of suing them. In 2001, a Mayo man was prosecuted for listing a business rival on an escort site (disparagement of the sexual behaviour of women is a depressing constant in tales of online abuse) and was ordered to pay in excess of £10,000. The Government of the day abolished that offence though, citing its incompatability with Freedom of Speech.

One has to wonder why, if that offence was worth abolishing only a few years ago, the DPP has effectively reintroduced it through the back door. If the concern is for the privacy of data, and the preservation of the personal domain (online or offline) of the individual, then that is perhaps more appropriately within the remit of the Data Protection Commissioner, who might welcome this criminal law power. Yesterdays’s case, with its emphasis on reputational damage, suggests otherwise. Confusing matters further were references to harassment. And where people frequently mischievously post things online under the names of others (I see it in my timeline all the time), we need to come to some clarity on whether that should be a crime, and if so, why. Perhaps most importantly, we need clarity on which crime it actually is.

Google Spain, What It Means and What It Doesn’t.

Yesterday’s decision of the Court of Justice of the EU in C-131/12, Google Spain v. Agencia Española de Protección de Datos, has generated quite a lot of media commentary, some of it, in my opinion, a bit overheated. I thought it was worth doing a quick overview of what the decision does, and more importantly does not say, and to consider the implications for the future of your information privacy.

 What’s It About?

In 1998, a Spanish newspaper, La Vanguardia  published a report of a court-ordered foreclosure auction to pay social security debt. In 2009, having paid off his debt, the debtor, Mr Costeja González, discovered that Googling his name led to a link to the report.

Relying on the Data Protection principles that data should, inter alia, be kept up to date, be relevant and not excessive to the purposes for which they are processed, and be stored for no longer than is necessary, Mr. González asked the newspaper to take the information down. After all, the information was, in a sense, no longer accurate, and its publication no longer legally required.  The editor refused, as the publication had originally been made by order of the Ministry of Labor and Social Affairs. I should add that, on free speech grounds, no newspaper should ever remove, let alone be required to remove material from its web archive, provided it was legal to publish that material at the time (this includes cartoons). Mr González then asked Google Spain to stop referencing the link in its search results and also complained to Spain’s Data Protection Authority, the Agencia Española de Protección de Datos (AEPD).

The AEPD asked Google to stop indexing the link, but refused to ask the newspaper editor to take the original information down, as the publication was legally justified. Google appealed, and the Spanish court referred a number of questions to the CJEU. Yesterday’s decision was the outcome of that reference.

What Were The Issues?

The Spanish Court referred three questions to the CJEU. The first regarded the question of the Jurisdiction of the relevant Directive, and need not detain us here. The second was a multi-part question that asked:

  • Whether Google’s indexing of pages containing the personal data of individuals, and ranking and publishing of search results, is “processing” under Data Protection rules. The Court answered that it is.
  • Whether Google, in processing this data, is to be considered a “Data Controller” and therefore placed under certain obligations by Data Protection Rules. The Court answered that it is.
  • Whether these obligations are excluded when the the personal data has already been lawfully published by third parties and is kept on the web page from which it originates. The Court answered that they are not.

The final question was whether there is a “Right to be Forgotten” by search engines, even where the articles in question have been (and remain) legally published online? The Court answered that there is.

What Does it Mean?

If an individual wants irrelevant or incorrect personal information about themselves “forgotten”, they may ask a search search engine to remove it. The search engine is not required to automatically comply, but it must examine the merits of the request.

Whether the request should be granted will depend “on the nature of the information and its sensitivity for the data subject’s private life and on the interest of the public in having that information”. For example, where a public figure seeks to remove embarrassing details about him from the public record, the public’s right to know may override his privacy rights.

This is perhaps the most problematic aspect of the decision, that it leaves it to Google to decide who is a public figure, what the public interest is, and whether to release old information back into the search results after a person becomes a public figure. No doubt courts will be addressing these questions for years to come.

What Does it not Mean?

This is not a freedom of speech issue, and attempts to frame it as one are inaccurate if not mischievous. The right to speak, to publish and to be be published is unaffected. Google are not creators of original content, but a company that indexes the content of others for commercial purposes. No piece of writing that was available online before yesterday has been censored because of Google Spain v AEPD. This statement from the Index on Censorship says the judgment “is akin to marching into a library and forcing it to pulp books”. This is arrant, hysterical nonsense. The article that sparked the case is still available on the website of La Vanguardia. Indeed, it is presumably available, unpulped, in its original paper form in some Catalan libraries. Nothing in the decision prevents anything being published online, anywhere. Certainly, it won’t stop Wikipedia from publishing true and accurate information. In this regard, Jimmy Wales’ infringement of Godwin’s Law yesterday looks fairly ridiculous.

Answer to second question: Never

What is at play here is the right to Freedom of Information. This is a different right to Freedom of Expression, although the two are linked. Google provides an amazing service, one some of us can hardly imagine living without it. But we did once live without it, and quite happily too. The idea that we have a right to access to all published information about any other person is a new one. The concept would have seemed absurd a few years ago. The information, remember, is still out there. Whether the relative recent convenience of having it all in one place is the stuff of human rights is debatable. Certainly, we all feel more positive about freedom of information when it’s us googling other people than when they are googling us.

That debate is one we are going to be having a lot in the coming years. For all that we complain about the NSA or the Gardaí knowing our intimate  business, we are very laid-back when it comes to Google or Facebook making their money out of it. Imagine for a moment getting stamps for free in exchange for allowing the postman to read your letters and then try to sell you stuff on the doorstep. Because that is what Google is – an advertising company. We tell them all about ourselves and they use this information sell ads directed, with amazing precision, at us. We get nothing in return, except a free but completely unconfidential email service. There has been a lot if talk in recent years about whether this bargain is an acceptable one.

It is not enough to say that people have the right to keep their own information to themselves. If you want to live in the modern world, that is simply not an option. A straight choice between surrendering your privacy or going to live in a cabin in the woods need not be the only option. We have laws precisely to avoid forcing such choices upon us – nobody now suggests that road traffic should be completely unregulated, because you have a choice of whether to drive or not. For years the tide of this debate ran in favour of the corporations that make their money out of your data. Yesterdays judgement, though imperfect, is a good start in refocusing the debate to take the individual’s rights into account.

The Age of Consent

The Irish Times reported this morning that proposals are before cabinet to lower the age of sexual consent from 17 to 16. The proposals may be a hard sell, as sex and change are two things the Irish public are deeply uncomfortable with. However, any such discussion is welcome news, as the current age causes numerous problems, and not just for teenagers.

The Oireachtas Committee on the Constitutional Amendment on Children’s Rights recommended as far back as 2006 that the age be reduced to 16. The Irish Times reports that on that occasion, Enda Kenny opposed any change on the grounds that it  would send a “wrong signal to our children about values and standards”. One imagines here a young couple in the throes of passion, suddenly stopping as one of them says “No. I love you, but Section 3 of the Criminal Law (Sexual Offences) Act 2006 says we have to wait, and An Taoiseach Enda Kenny agrees”.

16-year-olds have sex. They always have done, and while society may wish otherwise, they probably always will. The question then is not whether to do away with teenage sex (because the law cannot do that), but whether or not to make criminals of those teenagers. As the law currently stands, any male of any age who has sexual intercourse with a girl (or boy) of under the age of 17 is guilty of an offense, irrespective of the other’s consent. A girl, however, cannot be guilty of that offense. This, incidentally, creates an interesting lacuna, whereby there is no age of consent for gay girls.

Aside from the  fundamental question of whether it is humane to make criminals of boys who engage in consensual sex with their girlfriends, there is the fact that the current law acts as a disincentive for teenage fathers to acknowledge their children, because in doing so they confess to a crime.

Where a sexual offense exists, there follows, under the Criminal Justice (Withholding of Information On Offences Against Children and Vulnerable Persons) Act, 2012, an obligation to report it to the appropriate authorities. Accordingly, anyone who becomes aware of a teenage pregnancy is committing an offense by not reporting it. In practice it is rare for young people to be prosecuted for engaging in sexual activity where they are of similar ages and where there is no complaint of coercion. This however is of no relevance to the 2012 Act, which makes no reference, in requiring disclosure of information, of whether a decision to prosecute is likely to be made. This has been a matter of grave concern to organizations and individual professionals working with very young parents.

A reduced age of consent is only one of a number of proposals before the cabinet. Another is  is to allow a defence where a sexual act was consensual and between two people of “proximate age”. This would solve many of the problems mentioned above whilst still dealing with the question of sexual exploitation of teenagers by older adults. It is worth considering. What is not worth considering at all is the third proposal, which involves the DPP using discretion in bringing prosecutions. This effectively amounts to doing nothing and hoping that nothing bad happens. It provides no legal certainty, and doesn’t deal with problems arising from the 2012 Act. However, like any proposal that it involves doing nothing, it will probably find many advocates.

Critics will say that lowering of the age of consent simply moves the goalposts, and it is true that it will not solve every problem in this area. But at present there are too many teenagers who find themselves on the wrong side of the law. A reduction of even one year would remove many of them from criminal liability, and allow our authorities and social services to focus on the harder cases which remain on the other side of that line.

Facebook, the Whistleblower, the Binman and his Surprise Witness

Some months ago I wrote a column for The Journal about the right to anonymity, online and off. By way of an example, I mentioned the then very recent case of Mr. Jim Ferry, a Donegal businessman who had obtained an order requiring Facebook to reveal the identity of an anonymous user who had, Mr. Ferry said, defamed him.

Mr. Ferry runs a waste disposal company, and the Facebook user complained of had set up an account in Mr. Ferry’s name, claiming to have engaged in illegal dumping. Mr. Ferry complained and the page was taken down, but Facebook were unwilling to hand over details of the user without a court order. Mr. Ferry had to go to the High Court to obtain the order. Facebook did not oppose the application, and the anonymous user was not on notice of it, so the order was made without dispute. At the time I wrote

“Mr Ferry is being prosecuted by Donegal County Council for illegal dumping. He may be innocent of all charges, and the law presumes him to be so, until proven guilty. But if he is convicted, then Facebook will have handed over the personal details of someone who has done nothing illegal, and said nothing untrue. Unlike other jurisdictions such as the United States, Irish law fails to ensure that users are notified of attempts to identify them and given an opportunity to oppose the application.

Consequently in most cases Irish users are dependent on the web platform or ISP or to make a case on their behalf. These companies however, have no commercial incentive to do so. Facebook don’t want to get involved in an argument about dumping. That’s why they didn’t oppose the application.”

Last month, Mr. Ferry’s prosecution for illegal dumping came up for hearing. I’ll get to the verdict and its implications for free speech and privacy shortly, but first some entertainment.

A summary trial, the case nonetheless took three days in Letterkenny District Court. Both prosecution and defence briefed Senior Counsel. Mr. Ferry, to the last, maintained his innocence. This became a more difficult task when video evidence was led. The Donegal News describes the video thus:

Judge Kelly was shown covert video recordings showing two of Ferry’s distinctive green and yellow bin lorries dumping waste in holes in the field before it was buried using a track digger at around 5 am on the morning in question.

One of the men was wearing a hi-viz jacket with the name ‘Ferry Refuse’ emblazoned across the back of it.

One might have thought this would be the end of the matter. But at the closing of the first day of the trial, there was a dramatic development:

The hearing ended early after Mr Gillane (for the defence) told Judge Kelly that “a development took place that I have not experienced before.”

He added that his solicitor had received a “communication” and asked that the matter be adjourned for the day.

One can only imagine that what followed was what is commonly described as “uproar in the Court”. The cliffhanger was resolved the following morning. A former employee of Mr. Ferry had walked into court and delivered a letter to Mr. Ferry’s solicitor, admitting that it had been he who was responsible for the dumping all along. This surprise witness, one Marty McDermott, is pictured below, presenting a delighted Mr. Ferry with a “Certificate of Appreciation” awarded “From His Loyal Staff”

Marty McDermott.The Donegal Democrat takes up the story:

The former employee, Marty McDermott told the court yesterday that he had been paid €5,000 to dump illegal waste on the land.

McDermott said he had been set up by a man. “The man that I can’t mention set me up.”

McDermott said the person who wanted him to carry out the dumping was a man who wanted leverage in the Gweedore and Gweebara Bridge area, to keep Jim Ferry out of his area. “He wanted to get him out of that hub,” 
he said.

McDermott said he couldn’t deal with the guilt of what he had done after hearing people speaking about the implications the upcoming court case would have on the yard.

He said he went and spoke to a priest who advised him to see a solicitor who in turn advised him not to go near the court. He later decided to communicate with Ferry’s defence team.

Alas for Mr. Ferry, the Court found Mr. McDermott’s evidence entirely unbelievable. Still, Mr. McDermott has at least got the matter off his chest, and as soon as he donates the €5,000 to a worthy cause, his conscience will be clean. Mr. Ferry was sentenced to six months, suspended and fined €12,000. He was also ordered to pay Donegal County Council €30,750 in costs. The cost of his own legal team (who, given the circumstances, were made to work hard for their money) will be similar. This is without factoring in the cost of his trip to the High Court against Facebook.

Which brings us back to the point I was trying to make before I was side-tracked by Letterkenny’s Trial of the Century. Mr. Ferry knew all along that he was guilty of illegal dumping. His efforts to require Facebook first to remove the (true) allegations against him, and then to unmask their author were entirely without merit. A whistleblower was silenced because a man with a lot of money to splash around on unnecessary legal costs wanted to suppress the truth. He was able to do so because Irish law contains no mechanism for informing internet users that their identity is about to be revealed, or requiring courts to take the right to anonymity into account when hearing this kind of application. Mr. Ferry got his comeuppance, and highly entertaining it was too. Until the law is modified, not every wrongdoer will be so unfortunate.