How EU Law Created The Football Transfer Window

Every year at about this time, the sports media, led by a hysterically over-excited Sky Sports, loses its mind. This weird state of mania culminates in the spectacle, repeated up and down England, of journalists standing outside football stadia, accompanied by small groups of eccentric football fans, most of whom are no better or worse informed about what’s going on than the journalists they spend this strange day with.


All are waiting for the news that a contract has been faxed (a quaint anachronism) on time, or possibly (and this would be a moment of high drama) not faxed on time. This is the transfer window, perhaps the ultimate embodiment of the vacuous, much-ado-about-nothing nature of modern football hype. For those who get angry about such things, Sky Sports may be the obvious pantomime villain, but in fact it is all the fault of the European Court of Justice.

Jean-Marc Bosman was a journeyman pro, playing with RFC Liège in the Belgian First Division. In 1990, his contract expired, he wanted to join Dunkerque in the French league (in today’s parlance, he “had agreed personal terms”). However Dunkerque refused to meet Liège’s transfer fee demand, so Liège refused to let him go, despite his having been out of contract. Not only that, but they reduced his wages as he was no longer a first-team player.


In the big-money world of modern football, there are occasional cases of players earning huge salaries to do nothing, and happy enough to stay that way. But in the early 90’s Belgian League, Bosman’s circumstances were different. He needed to work, and was not being allowed to do so. In fact, if one compares his situation (and that of all players out of contract) to any normal contract of employment, it seems monstrous. Imagine not being allowed to leave your job unless your new employer paid a transfer fee to your old one.

Bosman took his case to the European Court of Justice in Luxembourg and won. One of the fundamental freedoms guaranteed by the European Union is the right to free movement of workers, and the Court held that that this applied to footballers as well as any other worker. A “free transfer”, once granted to players only as a reward for long service, became the norm for any player no longer in contract, and is now more commonly known as a “Bosman”.

Not only that, but the Court also held that any system restricting clubs to a limited number of foreign players was equally offensive to the right to free movement of workers. Football authorities now found themselves facing a future where players could come and go far more easily, and where richer clubs could plunder smaller clubs for talent at will (in fact this is pretty much what has ended up happening anyway).


While all of this was going on, some European leagues had already experimented with transfer windows of their own. (Italy’s Serie A, then the greatest league in the world, already had a window which, then as now, culminated with the deals all being done and registered in the ATA Hotel in Milan, a literal “transfer market”. One presumes Sky Italia are grateful for the opportunity to centralise their Deadline Day coverage.)

All through the 90’s, vaguely aware of potential legal trouble, and desperate to avoid a complete transfer free-for-all, UEFA tried to obtain agreement to a standardised window system. This wasn’t achieved until in 2000 the European Commission suggested (correctly) that the whole transfer system as then constituted was illegal, and proposed scrapping it. By the 2002-2003 season, a compromise had reached with the Commission, and the window was in place Europe-wide.

The fact that the window is a compromise is worth noting. Were the law to be strictly applied, the window system is probably illegal. Preventing players from changing club outside the window clearly prevents them from moving freely, as guaranteed by the Treaties. However, the Commission has stated that in certain cases there can be “good sporting reasons” to justify some kinds of economic restrictions. Amongst these good sporting reasons are team stability and regularity of sporting competition. And so, while clubs often moan about the window, this compromise obtained from Brussels is probably a lot better than they’d get from Luxembourg. For that reason alone, they might one day look back on the age of the Deadline Day as (literally) a golden age.

The Anton Savage Show Consumer Slot – Home Alarms & Insurance

I’ve recently started doing a weekly consumer slot on the Anton Savage Show on Today FM. The slot will generally be on Tuesdays, a little after 9:30 in the morning. A listener contacts the show with a problem, and I advise them of their rights, as well as answering shorter questions texted and tweeted in by listeners. I’ll be posting my notes for each show here on this blog. If you have an issue you’d like covered by the show, email a short note to


The first query I received for the show was as follows:

Anton, just found out last night when my house alarm went off – due to a spider – that I did not receive a customary text alert on my mobile phone which I always do.

On ringing my alarm company (not Eircom) this morning mentioning this, I was told that Eircom have stopped supporting text alerts from house alarms at the end of June past. Why on earth would they do this ? Are people all over Ireland who have this system aware that they will not get an alert? Eircom have not notified me about this withdrawal of service and I am wondering if my house insurance will be an issue as a result.

This was my response.

And these are my notes:

The end of SMS notifications for alarms is a result of Eircom withdrawing their SMS via land line facility. Very few people ever used the facility, and they decided last year to withdraw it. Unfortunately, one of the few uses of the facility was the security industry. Some alarms are fitted with a dialler, which uses the land line to send you a message when the alarm goes off. I contacted Eircom, and they sent me this press release:

Fixed SMS Withdrawal
All landline customers currently have the ability to send SMS text messages using their home phone. From 30th June, this functionality will be withdrawn and it will not be possible to send or receive SMS text messages via eircom landlines after this date.

In theory, every eircom landline customer can used fixed SMS, although in reality the number of customers who actually use this service is a very small percentage of eircom’s total customer base.
In some cases, the service ‘Fixed SMS’ functionality may be used to support ancillary certain services such as monitored alarm services. Some alarm systems may use this technology to trigger notifications to the monitoring centre, and to customers, to inform them that their alarm has been activated.

We do not have insight into the number of people who use Fixed SMS for their monitored alarms, as this is not a service provided by eircom. Having had discussions with the security industry, it is felt that the number of people who do have Fixed SMS notifications for their alarm service is very low (i.e. none of the biggest alarm companies use this functionality). In order to find out if your property alarm is dependent on a Fixed SMS service, eircom recommends that you contact your monitored alarm provider.

You may be able to get your SMS alerts back, depending on who your alarm provider is. Some alarms come with a mobile dialler, which can send you SMS alerts without needing to use a land line. There are other services which link up with a smartphone app and send you a notification that way.

If you can find your contract with the alarm provider, maybe they’re required to provide you with SMS alerts. If so, you may be entitled to have them upgrade your alarm. If not, you should look at changing providers when the contract runs out.

It is unlikely that this will make a difference to your insurance, though you should check the fine print of your premium to make sure, as each policy is different.

Alarms can be vital to home insurance claims. Many insurance policies will offer discounted premiums based on having an alarm. Some will only require that you have “a working alarm”, others will require an alarm certified to standard EN50131, which means you need either a new alarm installed or the old one upgraded plus you will have to have it re-certified every year which requires an annual service and maintenance contract. In some cases this can cost more than the discount, and isn’t worth the trouble.

Remember also that if you avail of an insurance discount, you have to abide by its terms. If you don’t, and you get burgled, you may not be able to claim. So if you’re the sort of person who religiously switches on the alarm every time you go out, you might as well get some financial benefit. But many premiums require you to switch the alarm on every time you leave the property unattended, even if you are just popping out to the shops. So if you tend to forget sometimes, you might be safer to pay the full rate.

Other discounts available may inlcude

You have made no previous claims or have made no claims in the past three years
There is somebody over 50 living in the house
The residents of the house are non-smokers
A resident is usually in the house during the day
You have a smoke detector installed
You have security locks fitted on doors and windows
You have another insurance policy with the same company
Your house is in a neighbourhood watch area
The person applying is over 40, or in some cases over 50
The house is more than 10 years old.

As the list above indicates, contents insurance is just one kind of home insurance. Also available are Buildings insurance which covers you for damage to buildings, and liability insurance which covers you for injury to other people in or around your home. If you plan to get more than one kind of cover, you will usually find you get better value by getting a package from a single provider.

An important issue to consider in buying any kind of insurance is the “excess”. The excess is the amount that you have to pay yourself for any claim before your insurer pays the balance. Your insurer will reduce any claim settlement by the amount of the excess stated on your policy. You cannot claim for losses that are less than the excess.

The amount of the excess can depend on the insurer, but normally it is between €100 and €500 for standard claims on a home insurance policy. You can sometimes get a discount on your premium if you agree to a higher excess.


If need to make a claim, call your insurer or broker immediately. They often have a free emergency helpline. Give brief details of the claim and request a claim form. They may give you advice on what to do next. For example, if your home has been damaged, they may suggest you get some emergency repairs done. Always check that your insurer will cover the cost of any repairs.

For larger claims, such as a buildings claim on your home, you may want to hire an assessor. An assessor works on your behalf and will often negotiate with your insurance company to settle your claim. Assessors’ fees are not covered by your policy, so you will have to pay for this service yourself.

If your claim is refused, your insurance company or broker must write to you to explain the reasons why your claim was refused and give you details of how to appeal the decision.

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


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:


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.