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“(5A) (a) The owner of the copyright in a work may, in respect of that work, apply to the High Court for an injunction against an intermediary to whom paragraph 3 of Article 8 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 200111 O.J. No. L. 167, 22.6.2001, p.10. on the harmonisation of certain aspects of copyright and related rights in the information society applies.”
-- Excerpt from the January, 2012 Draft Regulations: S.I. No. of 2011
European Communities (Copyright and Related Rights) Regulations 2011
1.This vague and alarming language will give the Irish courts an open-ended power to
grant orders against ISPs and other intermediaries who provide facilities which might be used to infringe copyright. A single user illegally sharing content on a site like Facebook or YouTube could be grounds for a rights holder to seek an injunction forcing Irish ISPs to
block access to those sites.
2.Ireland has benefited enormously from the presence of international internet and
technology companies, who employ tens of thousands of Irish workers. For what purpose
does a 'Jobs Government' seek to undermine Ireland's reputation in this area, and put the jobs of these international technology companies in Ireland at risk?
3.Where the Minister of State intends to prevent access to sites whose primary purpose is to
enable users to engage in copyright violation, he has instead delivered draft wording
which enables a court to block any site with any non-infringing purpose where any user has so much as linked to any infringing material.
4.Sean Sherlock may continually state that blocking access to websites 'is not his intent' but
the intent is irrelevant. What counts are the words in the actual text. The updated draft document published on Thursday is effectively unchanged from the one circulated last
year. It is still bad law.
5.The Minister of State is publicly and simultaneously saying two mutually-contradictory
things:
•That he doesn't want to enable courts to enforce the wholesale
blocking of web sites,
•That he does want the courts to be able to grant injunctions like the
one denied to EMI – which would have ordered a site to be blocked
in its entirety from all UPC customers.
6.There is no guarantee of provision for website owners to have any safe harbour,
representation or even a right to oppose the injunction before it is granted. The effect of
this will be to deny due legal process to any person or company lacking the
considerable financial resources necessary to mount a high court action.
7.Charleton J. in EMI v. UPC [2010] IEHC 377 referred to any legislative intervention being
properly a matter for the Oireachtas. The Opinion of the Advocate General in Scarlet
(Extended) v. SABAM (Case C-70/10) similarly referred to a need for legislation in this
area to be “democratically legitimised” (at para. 113).
8.If a matter is so significant that it must be debated by Cabinet, it is by definition not a
matter which is suitable to be enacted without the vote of the Oireachtas.A Ministerial Order (Statutory Instrument) is only intended to bring in secondary legislation, tidying up the administrative side of policies and laws already passed through the Oireachtas.
9.Indeed, FG and Labour's joint Programme for Government explicitly states they will not
incorporate EU regulations into law except by primary legislation, and that sneaking them in by statutory instruments is 'unacceptable.'
10.The measure proposed will likely be found in contravention of the European
Convention on Human Rights. Freedom of speech is infringed when, as will inevitably occur in this case, publications and companies and individuals self-censor for fear of
vaguely-worded legal consequences. It will – it cannot but – lead to a widespread culture of 'prior restraint' censorship. Government action that brings about such 'chilling effects' is not legal behaviour.
By definition, as well as from experience, legislators know very well that laws enacted in haste are usually bad laws; laws that experience no scrutiny from the legislature before passage are frequently bad laws; and laws which lack so much detail that they cannot possibly be properly defined except by the intervention of the courts are always bad laws. This one is all three.
This briefing document was prepared on behalf of and its 45,175 petitioners by TJ McIntyre and Simon McGarr. Please contact them for comment using the details below:
Simon McGarr
McGarr Solicitors
************************* 01 6351580TJ McIntyre
Digital Rights Ireland
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