The recent minor scandals surrounding TDs and driving offences has shed some light on an often neglected provision of our Constitution, Article 15.13, which relates to the immunity from arrest of members of the Oireachtas.

The article is a hold-over from the Free State Constitution, where it appeared in exactly the same words. This in turn was carried over from the less formal privilege from arrest applying to the Westminster parliament. Similar immunity provisions apply in many other countries, and their purpose is clear, to protect elected representatives from molestation or interference by the powers of the state or others in their ability to speak and vote in parliament.

There is literally no case-law on the article, as it could only come before the court in circumstances where a member of the Oireachtas cited it as a defence in criminal proceedings, arguing that his arrest was contrary to its provisions. That has not happened, and may never. Because of this lack of consideration of Article 15.13 by the courts, there is unsurprisingly little scholarly analysis of it either. In fact, most of the leading Constitutional Law tomes don’t even mention it. We are left, therefore with only the text itself to provide a clue as to the scope and meaning of the Article.

The article states:

The members of each House of the Oireachtas shall, except in case of treason as defined in this Constitution, felony or breach of the peace, be privileged from arrest in going to and returning from, and while within the precincts of, either House, and shall not, in respect of any utterance in either House, be amenable to any court or any authority other than the House itself.

The latter part of the article has been the subject of a good deal of consideration. It deals with the privilege attaching to statements made in the Oireachtas from suits in defamation or other external limits. The first part, as I’ve said, has been largely neglected. On a straightforward reading, though, it seems to provide for a blanket immunity from arrest. No mention is made of whether the Oireachtas needs to be in session for the privilege to apply, not is there any limitation of the meaning of “the precincts of” the Houses of the Oireachtas. “Going to and returning from” is not defined either. Perhaps the trip back to one’s constituency several days after the Oireachtas has closed for the summer would qualify. Certainly, there is nothing to say that a TD is not within his rights to invoke the article when threatened with arrest for a traffic offence, even including drunk driving. In fact, given that most travel is now by car, it would be an absurdity if an article intended to prevent legislators from being improperly detained en route to Oireachtas business were to exclude traffic offenses. The privilege however, is from arrest only. A Garda is perfectly within his rights to ask a TD to blow into a breathalyzer, and is within his rights to charge him for failure to do so. The only thing he cannot do is arrest him.

It is an embarrassment when a provision that was intended to prevent the institutions of democracy from despotism is invoked most often in discussions of bad or drunk driving. Even TDs know this, and if not loath to rely on the provision, are loath to admit to doing so. Recently, the Sunday Independent reported that Leo Varadkar, as Minister for Transport, was planning to stamp down on inappropriate use of the provision. I stated at the time – employing the dubious term “un-stamp-down-upon-able” – that this was not possible; one might disapprove of certain uses of Article 15.13, but this does not make them “inappropriate”, and in any case, the article can’t be modified or abolished without a referendum.

However, I may have been too hasty in this conclusion. Returning to the text again, the article is explicitly stated not to apply to arrests for treason, breach of the peace, or felony. Treason and breach of the peace are well defined. The felony/misdemeanour distinction was always fuzzy, and in any case no longer exists, having been abolished by the Criminal Law Act, 1997. This abolition would have had the effect of making the privilege from arrest even broader, as no offence would be a felony, and therefore one of three exceptions to the privilege would have been abolished. Mindful of this, the then government included a provision stating that

“For the purpose of Article 15.13 of the Constitution and for that purpose only, offences which were felonies immediately before the commencement of this Act shall continue to be treated as felonies”

So, the only people remaining in Ireland who can commit a felony are members of the Oireachtas. Perhaps this is apt. But this provision, were it to be turned on its head, provides an easy means to abolishing the privilege. If the provision were to be amended to state that all criminal offences are to be considered felonies for the purpose of Article 15.13, then the privilege no longer applies to any kind of arrest.

Is it a good idea? Maybe not. There have been governments in Ireland’s past who I would not trust not to have political opponents arrested on their way to narrow votes. There’s no reason to believe we won’t have such governments again. Maybe this is one of those archaic provisions that it’s worth hanging on to.

The big story coming out of the Sunday papers this week has been the Sunday Independent’s “sting” on two Labour TDs, where they were secretly recorded giving their views on liberalisation of the law on abortion. The story doesn’t amount to much really; it hardly comes as a surprise to learn that Labour are broadly pro-choice, and the recordings simply reflect that position, albeit in slightly less guarded language than might be used in more public discussions. Still, the story may have provided ballast for the Sindo’s conviction that pregnant women have options other than abortion, posing in their underwear for Life Magazine being chief amongst them.

A secondary issue has been the ethical questions surrounding secret recordings. It wouldn’t do to be too moralistic here: not long ago, Hugh Grant (of all people) was widely hailed as a hero for making a secret recording,  without too much hand-wringing about invasion of privacy. If secret recording is a legitimate tool of investigative journalism, then we can’t change the rules when we don’t like the kind of story being reported.

As to the law, there is not much out there on the subject of recorded conversations. Interception of phone calls is forbidden by the Postal and Telecommunications Services Act 1983, as amended, but this applies to phone tapping rather than to recording by one of the participants, which is expressly excluded, even where the other party is unaware. And in any case, the materials published this weekend were transcripts of face to face conversations, not of phonecalls. There may be questions of admissibility of secretly recorded conversations as evidence in court, (though the The Barristers Professional Conduct Tribunal has ruled that a recording of a phone call  is admissible in proceedings for professional misconduct) , but there is nothing illegal about the simple fact of making the recordings.

Voice recordings are personal data, and in the normal course of events, it will be contrary to the provisions of the Data Protection Acts to publish them. However, the Data Protection Acts provide for exemptions for journalistic purposes. While one may quibble as to the quality or merit of the story in question, there is no doubt that the Sunday Independent can say they reasonably believed that the publication would be in the public interest.

Interestingly, this exemption applies not just to the publication of such data, but also to section 4 of the Act, which provides for the right of access to personal data. I mischievously suggested earlier today that the two TDs recorded could make a subject access request to the Sunday Independent, to see what else the paper had on them. Were this possible, I imagine there would be a very welcome increase in interest by our politicians in the Data Protection Act, not to mention an increase in support for proper funding of the Office of the Data Protection Commissioner. However, the exemption in the legislation is quite clear in its application, and for good reason. Freedom of speech includes freedom to remain silent or to speak at a time of one’s choosing. If individuals could compel media organisations to hand over copies of all information held about them, this would effectively end all investigative journalism. Not only that, but there is the rather chilling possibility of dangerous criminals sending in requests for data held on them by crime reporters.

As to the person making the recording, it is entirely up to the newspaper whether they wish to reveal her identity. Media industry practice on protection of sources means that this will probably not happen. However, if another news outlet was minded to name her, it would be as entitled to do so as the Independent was to print the transcripts in the first place. Whether that would be good for journalism is a different matter.

Newspapers yesterday reported that a politician had called for a “ban” on hoodies, due to a perceived rise in crimes carried out by persons wearing them. The problem was not that the hoodies were the cause of the criminal tendency (I mean, that would be a stupid thing to say), merely that they made identification of culprits difficult. The solution, according to Michael Kilcoyne, town councillor in Castlebar, was to pass a by-lay banning them.

Last month, the Daily Telegraph reported that a school in Essex had “banned” triangular flapjacks in response to an incident where one had been thrown at a child, causing him a sore eye when he got hit with the pointy end.

Not long before that, it was reported that James Bannon TD had called for a “ban” on smartphones, or at least on the smartphone functionality which allows for the recording of phonecalls. Or maybe it was just a ban on the actual recording, Deputy Bannon wasn’t clear.

In all these cases, a number of common news media errors were at play. The first is the rather childlike idea that, as in a fairy tale, certain things can simply be banished from the kingdom by way of proclamation. But a ban doesn’t stop things from happening, it merely makes them illegal. Murder has been banned for some time now, but it still happens with saddening regularity.

To take the example of the hoodies, a functional ban would require that wearing one be made a criminal offence. You would then need to provide for penalties, perhaps including jail. Then you would need a police force to arrest people for the offence, and courts to impose sentences. For good measure, it would be necessary to police the outskirts of the town, to ensure that nobody crossed the border clad in hooded contraband. All of these things are beyond a town council, even if Mr. Kilcoyne was able to get support for his plan.

Secondly, there is the related confusion regarding what a “ban” actually is and who can institute one. In the UK in 2005 (we in Ireland are always behind the times in our moral panics) some shopping centres announced that they would not be allowing wearers of hoodies on the premises. But a shopping centre is not a public body. The policy was stupid (they sold hoodies on the premises) but it wasn’t a ban, it was a dress code.

Likewise, it seems unlikely that children at Castle View School in Essex are being frisked for triangular flapjacks upon arrival each morning, or that possession of one is an expelling offence. The Telegraph admits as much in the story, and waters it down to the claim that school cooks have been “banned” from cooking triangular flapjacks. But caterers cook certain foods to order (that is what catering is). The orders change from time to time. To call a change in the specified shape of a flapjack a “ban” is about as sensible as saying that I “ban” my local chip shop from putting vinegar on my chips.

James Bannon at least is a member of a body which has the capacity, if not the will, to pass his measure. But he seems to follow the fairy-tale approach to bans; rather than addressing himself to the more practical question of perhaps making the recording of phonecalls an offense (that would be an actual ban, and there might be some merit in it), he is more ambitious, and seeks to have something (but what?) done about the technology.

Finally, there is the media weakness for the “calls for ban on” story. No individual is too lowly, or their political mandate too miniscule, to have their ill-considered whinges characterised as a call for a ban on something. Google the words “calls for ban”, and you will find a catalogue of complaints by insignificant figures and instances of journalistic triviality. A sports scientist in South Africa expresses concerns about the effect of competitive sport on young children, the story is headlined “Expert calls for ban on school rugby“. An Athlone town councillor complains, ineffectually, about beggers, the headline is “Athlone Council Calls For Ban On Begging“. Lisa Marie Presley says the Simpsons is inappropriate for kids, lo and behold “Presley calls for ban on The Simpsons“. That these stories are mixed in with serious ones like “Obama Calls for Ban on Assault Weapons” is unhelpful. I have long felt that certain types of news stories should have compulsory headlines. In the case of this type of story, I think the headline “Person Says Thing” would provide much needed perspective. Instead of getting into the merits and demerits of an actual ban, the reader would immediately understand that all that was going on was a complaint by a single individual who thought that something ought to be done about something.

A law is a law. A policy is a policy. A wish that things be other than they are is nothing more than that, even if made aloud by a public representative. Stories that confuse them are unhelpful to the public understanding of what authorities can, or should do. They shouldn’t be allowed.

Below are the submissions of Digital Rights Ireland, written by me, to the hearings on social media and cyberbullying of the Oireachtas Joint Committee on Transport and Communications. 

Submissions of Digital Rights Ireland to the Oireachteas Joint Committee on Transport and Communications hearings on social media and cyberbullying

Digital Rights Ireland (DRI) is a civil liberties group, concerned with defending civil and human rights particularly those arising in the context of modern communication technologies. DRI is a member of the European Digital Rights Initiative, an international non-profit association of non-profit, non-governmental organisations whose goals include the defence and promotion of civil rights in the field of information. At the domestic level, we have worked with other civil rights groups such as the Irish Council for Civil Liberties. Our membership includes persons working in academia, the law and business, and having practical and academic expertise in questions of information technology and the social, political and legal issues arising therefrom. We carry our research and contribute to litigation and public debate regarding such matters as data retention requirements, data protection, telecommunications interception, copyright and fair use restrictions, and filtering and blocking of internet content. We make these submissions for the assistance of the Committee.

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Last week, the High Court dismissed a claim in defamation brought by a man claiming to have been defamed by Smyth’s toy shop when one of their security guards, he alleged, accused him of stealing a toy duck.

The fact that the product at the centre of the case was a walking and talking toy duck (and the fact that it could only with difficulty be stopped from walking and talking in the High Court) has led it to be reported as a frivolous case, thrown out by the judge on grounds of pure silliness.

In fact, cases of this kind are quite common. After all, how would you like it if you were accused of theft in front of a shop-full of fellow customers? Bad enough in the relative anonymity of the city centre, the damage to your reputation could be many times worse in a small town. All things being equal, the making of such an accusation is defamatory, if untrue. However, store owners would be placed in an impossible position were they at risk of defamation liability every time they accosted a suspected shoplifter.

The law in the area is set out in the 2004 case, McCormack v Olsthoorn. Mr. McCormack, a keen gardener, had bought a tomato plant on a Saturday shopping trip, and was in the Limerick Milk Market, hoping to buy another. Having browsed at Mr. Olsthoorn’s market stall, he moved on, bringing with him the tomato plant previously bought at another shop. Mr. Olsthoorn saw him walking away with a plant in hand, and made the not unreasonable assumption the plant was from his stall. Though the parties disagreed as to what exactly happened next, there was no dispute that Mr. Olsthoorn accosted Mr. McCormack, before backing off upon discovering that the plant was not one of his stall’s.

The issue before the court was whether the stall owner’s utterances to Mr. McCormack, in the full hearing of a crowded Milk Market, were protected by qualified privilege.  Privileged statements are exempted from the defamation laws, the best known example being the absolute privilege attaching to statements made in the Dáil. Qualified privilege arises on certain situations, but can be lost. In McCormack v Olsthoorn, Mr. Justice Hardiman held that the prevention of a suspected theft was an occasion of qualified privilege, and that Mr. Olsthoorn “had a legal right to protect his property and in doing so to “tax” an individual whom he suspected of a theft”.

One would have thought that this might have put an end to these defamation claims, but they continue to arise. The main reason for this is that, unlike absolute privilege, qualified privilege can be lost, and one of the ways it can be lost is via excessive publication. Mr. Justice Hardiman seemed to accept in Olsthoorn that questioning someone about a possible theft in the presence of customers is not necessarily an excessive publication. This seems reasonable, as it will not always be possible to act discreetly where time is of the essence. However, the question of just how indiscreet one can be remains unanswered, and delicacy and discretion are not necessarily major element in a security guard’s job description. Certainly, a shout of “Stop, Thief!” across a crowded shop will not always be justifiable.

Accordingly, shoplifting defamation claims are quite common, some successful, some not. In 2011, two teenage girls were awarded €8,000 each for defamation (plus €2,500 each for false imprisonment, which is often a component of these cases) when falsely accused of shoplifting. Earlier that year, another teenage girl (the pattern here is not entirely coincidental, I suspect – security guards are mistrustful of teenagers) received a settlement of €15,000 for a similar false accusation. In 2009, however, two claims were dismissed, where it was held that shop owners and their staff were entitled to make discreet enquiries.

In the case of the duck, the case was dismissed on the basis that there was no malice in the security guard’s behaviour (malice being another of the ways in which privilege can be lost). This suggests that the question of excessive publication was not pursued in that particular case. Mr. Mongan might have fared better if it had. Certainly, his financial troubles would have been lessened had he gone (as did the Plaintiffs in all the cases mentioned in the above paragraph), to the Circuit Court

In the light of recent discussion regarding Newspaper Licensing Ireland and website links, I thought it might prove useful to look at what the law behind the whole dispute says, and at least as importantly, what it does not say.

A hyperlink direct to a particular page within a website has been termed a “deep link”, to distinguish it from a link which simply directs one to the homepage of a particular publication, (www.irishtimes.com, for e.g.). The validity of any such distinction is in fact questionable. The whole point of the internet is that it is a collection of individual pages, none any “deeper” than the other. Homepages, particularly news media organisation homepages, usually display copyright material. In a copyright context therefore, a link to a home page is no different in principle to a direct link to an article.

Links are not explicitly provided for anywhere in Irish law. When pressed in recent days, the newspaper industry could point to no specific provision to support their assertion that links require a licence. However, the most immediately relevant provisions are Sections 39 and 40 of the Copyright and Related Rights Act, 2000.

Section 40(8) provides for a “Making Available Right”:

“There shall be a right of the owner of copyright to make available to the public copies of a work or to authorise others to do so which shall be known and in this Part referred to as the ‘‘making available right’’.”

This right is defined as including making available copies of the work though the internet. The question here is whether posting a link constitutes such a “making available”. If so, it is something for which the copyright owner is entitled to withhold or charge for permission.

Robert Clarke, in his “Irish Copyright and Design Law” considers the provision only insofar as it applies to a degree of reproduction, stating “It is clearly an infringement of copyright to put a work on an internet server without the consent of the owner of the work”. This would include activity like uploading a film to Youtube. In the case of linking, no work is placed on a server; rather, the reader is directed to the copyright owner’s own server. In Clarke & Smith’s Intellectual Property Law in Ireland, Section 40(1)(a) is explicitly described as specifying “that placing works onto a server – acts of uploading – will be infringing acts”. The furthest the authors are prepared to go with regards to linking is to state that

“It may be possible to view the “authorising infringement” concept to be so wide as to discover acts of facilitation such as providing information on the location of infringing works on the world wide web, even if the infringing work is not available directly from that website”

The emphasis here is not on the act of linking, but rather the target of the link. It would follow that where the target to the link is not infringing, the link itself is not an infringement. The “making available” of the material is done by the newspapers themselves. Any external link is simply a direction to potential readers that here they may enjoy the article, much as one would direct a potential audience to the performance of a theatrical work by notifying them of the time and place of the performance. Contrary to their earlier statements to the contrary, NLI now appear to agree.

In recent days, there was much emphasis placed on the Terms & Conditions of individual Newspapers. Prior to NLI’s change of position, the Irish Times (whose responsiveness in this matter puts their fellow newspapers to shame) pointed to the provision in their T & C’s which permitted linking, for personal, non-commercial purposes. This of course assumed that such permission was the Irish Times’ to grant. The reason for this distinction was, in all probability, that the newspapers were attempting to reserve their position with a view to a possible license claim against google. The new position of the NLI seems to render any permissions granted in the T & C’s moot. Time will tell what has become of the newspaper industry’s aspirations regarding Google and other search engines and aggregators.

If, as is now clear, you can link without permission, what can’t you do? Section 39 of the 2000 Act provides for the “Reproduction Right”:

 “There shall be a right of the owner of copyright to copy a work or to authorise others to do so which shall be known and in this Part referred to as the ‘‘reproduction right’’”

Copying or transcribing an article is clearly a breach of this right. How much of an article one can get away with quoting is unclear, but there is Court of Justice of the European Union case law to the effect that the creation of an eleven-word extract from a news article was capable of constituting “a reproduction, in whole or in part”. Thus, a short extract, where “the elements thus reproduced are the expression of the intellectual creation of their author” must come under the protection of the Reproduction Right. Technically, then, even reproduction of a headline might require a license.

An interesting side note, and one that did not receive much attention in the recent debate, is the question of who owns the copyright in the work of freelancers. Section 23 of The Copyright and Related Rights Act, 2000 provides

“The author of a work shall be the first owner of the copyright unless—

(a) the work is made by an employee in the course of employment, in which case the employer is the first owner of any copyright in the work, subject to any agreement to the contrary,

The effect of this provision is that newspapers are the first owners of copyright in the materials they publish, but only where the author of the article is an employee. Where, as is very often the case, an article is written by a freelance journalist, the journalist retains copyright unless he specifically waives it. Given the manner in which freelance work is commissioned, there is rarely any explicit agreement between freelancers and newspapers as to what rights are being acquired by the newspapers.

In the event that Newspapers have made demands for payment in respect of material in which they do not hold copyright, there may be civil liability for an account of profits, as in the US case New York Times Co. v. Tasini, where the Plaintiffs, a large group of freelancers, won a compensation pool of $18 million from the Times. The spoils of any such case in Ireland are unlikely to be so rich, but it’s an issue one would expect the NUJ to look at on behalf of its freelance members.

Update: A site which linked to this post did so in the context of a discussion regarding the meaning and limits of “Fair Use” in Irish law. By way of clarification, Fair Use has no meaning in Irish copyright law. The idea that it does is probably (along with the "Class Action" canard) the most commonly repeated item of legal misinformation online. Fair Use is an American doctrine with no equivalent here.