Saturday, August 8, 2009
Friday, August 7, 2009
The Ninth Circuit has upheld a lower court judge's ruling holding that a San Diego law firm is subject to personal jurisdiction in the Northern District of California,based on purposeful availment in an Internet website plagiarism case. Another law firm alleged that the firm in question plagiarized from the first firm's copyrighted website. The case is Brayton Purcell LLP v. Recordon & Recordon, 2009 U.S. App. LEXIS 17389.
Recordon & Recordon ("Recordon") appeals the district court's denial of its motion to dismiss for improper venue. In copyright infringement actions, venue is proper "in the district in which the defendant . . . resides or may be found." ... This circuit interprets this provision to allow venue in any judicial district where, if treated as a separate state, the defendant would be subject to personal jurisdiction. ... Because Recordon & Recordon would be subject to personal jurisdiction in the Northern District of California if it were treated as a separate state, we hold that venue was proper and affirm the decision of the district court.
A district court's rulings on personal jurisdiction and venue are reviewed de novo....Although the burden is on the plaintiff to demonstrate that the court has jurisdiction over the defendant, in the absence of an evidentiary hearing, the plaintiff need only make "a prima facie showing of jurisdictional facts to withstand the motion to dismiss." ... Additionally, "uncontroverted allegations in [plaintiff's] complaint must be taken as true, and conflicts between the facts contained in the parties' affidavits must be resolved in [plaintiff's] favor."...
In copyright infringement actions, venue is proper "in the district in which the defendant or his agent resides or may be found." ... The Ninth Circuit interprets this statutory provision to allow venue "in any judicial district in which the defendant would be amenable to personal jurisdiction if the district were a separate state." ...
This Court employs a three-prong test to determine whether a party has sufficient minimum contacts to be susceptible to specific personal jurisdiction: 4(1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws;
(2) the claim must be one which arises out of or relates to the defendant's forum-related activities; and
(3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable.
...Only the first prong is at issue in this appeal.
The first prong is satisfied by either purposeful availment or purposeful direction, which, though often clustered together under a shared umbrella, "are, in fact, two distinct concepts."...Here, the underlying action is copyright infringement, which is often characterized as a tort. ... Purposeful direction is therefore the proper analytical framework in this case. ...
This court evaluates purposeful direction using the three-part "Calder-effects" test, taken from the Supreme Court's decision in Calder v. Jones, 465 U.S. 783, 104 S. Ct. 1482, 79 L. Ed. 2d 804 (1984). ...Under this test, "the defendant allegedly must have (1) committed an intentional act, (2) expressly aimed at the forum state, (3) causing harm that the defendant knows is likely to be suffered in the forum state." ...There is no requirement that the defendant have any physical contacts with the forum. ...
In this case, the "intentional act" element is easily satisfied. This Court "construe[s] 'intent' . . . as referring to an intent to perform an actual, physical act in the real world, rather than an intent to accomplish a result or consequence of that act." ... Recordon committed an intentional act when it created and posted an elder law section on its website that infringed Brayton Purcell's copyright. ...
The second part of the Calder-effects test requires that the defendant's conduct be expressly aimed at the forum. ...This court has emphasized that "'something more' than mere foreseeability [is required] in order to justify the assertion of personal jurisdiction," ...and that "something more" means conduct expressly aimed at the forum....
It is beyond dispute in this circuit that maintenance of a passive website alone cannot satisfy the express aiming prong. ...Thus, regardless [sic] whether a case involves the internet, the question remains whether the defendant's conduct was expressly aimed at the forum.
In its complaint, Brayton Purcell alleged that Recordon engaged in willful copyright infringement targeted at Brayton Purcell, which Recordon knew to be a resident of the Forum. Specifically, Brayton Purcell alleged Recordon individually targeted it by "willfully, deliberately and knowingly" making "commercial use of Brayton Purcell's Website," thereby placing Recordon in competition with Brayton Purcell in the field of elder abuse law. In a supporting affidavit, Brayton Purcell noted that elder abuse is a growing area of legal specialization, "and few law firms advertise and hold themselves out as experts in this field." Brayton Purcell is a leader in this burgeoning speciality, with a practice extending throughout California. Given the paucity of firms with elder abuse expertise, any use of the infringing material by Recordon to advertise in Southern California places Recordon in direct competition with Brayton Purcell. Prospective clients in Southern California viewing the two firms' websites are likely to be confused as to the material's true author, and some may erroneously believe Brayton Purcell is the infringing party, harming its business reputation.
For purposes of plaintiff 's prima facie jurisdictional showing, "uncontroverted allegations in . . . [plaintiff 's] complaint must be taken as true, and conflicts between the facts contained in the parties' affidavits must be resolved in . . . [plaintiff's] favor." ...Taking Brayton Purcell's allegations and statements as true, Recordon individually targeted Brayton Purcell by making commercial use of Brayton Purcell's copyrighted material for the purpose of competing with Brayton Purcell for elder abuse clients. Though Recordon maintained that its "Elder Law Section . . . was directed toward prospective clients located in San Diego County," this does not rebut Brayton Purcell's allegation. That Recordon's prospective clients reside outside the Forum is irrelevant as long as Recordon individually targeted Brayton Purcell, a Forum resident. ...Brayton Purcell has thus satisfied its burden of showing that Recordon expressly aimed its conduct at the Forum by individually targeting a known forum resident. ...
This court's decisions in Pebble Beach and Schwarzenegger are not to the contrary. In Pebble Beach, California's Pebble Beach golf resort sued defendant for trademark infringement. ... The defendant operated a bed and breakfast called "Pebble Beach," which was "located on a cliff overlooking the pebbly beaches of England's south shore." ...Defendant maintained a passive website advertising his business. Id. The "only acts identified by Pebble Beach as being directed at California are the website and the use of the name 'Pebble Beach' in the domain name." ...Reaffirming that express aiming is satisfied by individualized targeting, the court held that the defendant, by merely registering and operating a passive informational website, "engaged in no 'individualized targeting.'" ...Here, in contrast, Recordon has done more than merely maintain a passive website. By plagiarizing Brayton Purcell's website verbatim, Recordon allegedly placed the two law firms in competition in the area of elder abuse law and created confusion among potential clients as to the true authorship of the elder abuse material. This individualized targeting distinguishes the instant case from Pebble Beach.
In Schwarzenegger, the court held defendant's use of Arnold Schwarzenegger's image in a local Ohio newspaper insufficient to confer jurisdiction because the advertisement "was expressly aimed at Ohio rather than California." ...The court found no individual targeting because "[t]he Advertisement was never circulated in California, and . . . [defendant] had no reason to believe that any Californians would see it." Id. In contrast, Recordon had every reason to believe prospective clients in Southern California would see the website--indeed, attracting new business was the point. Recordon also knew its conduct was likely to confuse and deceive potential clients as to the source of the elder abuse material. Recordon's wrongful conduct placed it in direct competition for elder abuse clients with Brayton Purcell, an established expert in the field with a practice extending into Southern California. By thus individually targeting Brayton Purcell, a known Forum resident, Recordon expressly aimed its conduct at the Forum. Assuming the dissent is correct that something more than knowledge of the residence of the plaintiff is required for there to be express aiming at the Forum, such a requirement is satisfied here; the parties are competitors in the same business so that the intentional infringement will advance the interests of the defendant to the detriment of the Forum interests of the plaintiff. The express aiming prong is therefore satisfied.
The final element requires that Recordon's conduct caused harm that it knew was likely to be suffered in the forum. ...The Court in Yahoo! clarified that this element does not require that the "brunt" of the harm be suffered in the forum, as some previous cases had suggested, and that this element may be established even if "the bulk of the harm" occurs outside the forum. ...This element is satisfied when defendant's intentional act has "foreseeable effects" in the forum. ...In this case, it was foreseeable that Brayton Purcell would be harmed by infringement of its copyright, including harm to its business reputation and goodwill, and decreased business and profits. It was also foreseeable that some of this harm would occur in the Forum, where Brayton Purcell was known to reside. Indeed, Brayton Purcell specifically alleged Recordon committed its "infringing acts . . . knowing Brayton Purcell is a resident of this District and would suffer any injuries from Defendants' conduct in this District." Consequently, Brayton Purcell has satisfied the third and final element of the Calder-effects test....
In sum, Recordon has satisfied the "purposeful direction" prong for specific personal jurisdiction. Because the parties did not dispute the remaining two prongs--that Brayton Purcell's claim arises out of Recordon's purposeful direction and that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice--Recordon is subject to personal jurisdiction in the Northern District of California. We therefore hold that venue was proper in the Northern District of California pursuant to 28 U.S.C. § 1404(a). The decision of the district court is AFFIRMED.
Concern of the seeming meltdown of contestant Hollie Steel on the Show "Britain's Got Talent" has prompted a government investigation in children and young people's appearance in the entertainment field generally, reports the Guardian.
The review is not focused solely on talent shows, and will also look at the modelling, stage and film industries. Children's entertainment legislation has not been fully reviewed since 1968.
It also likely that the TUC will call for all contestants in the final rounds of talent shows to be paid minimum Equity rates. There is concern in unions that talent shows, built round amateurs, are driving professionals off primetime TV.
The Press Complaints Commission is reviewing its structure and functions, the first time it has done so since the PCC came into existence. The announcement of the review follows on a number of criticisms and complaints from the media and the public, and revelations of questionable behavior from members of the media. Read more here in the Guardian, the Press Gazette, and the editorsweblog.
From the PCC website:
In her first major initiative since taking over as Chairman of the Press Complaints Commission in April 2009, Baroness Buscombe has announced plans for an independent review of the PCC’s governance. The review group will examine the operation of the PCC board, sub-committees and secretariat; how transparency in the system can be enhanced; whether the independent systems of accountability – the Charter Commissioner and Charter Compliance Panel – can be improved; and the PCC’s Articles of Association.
Announcing the move, Lady Buscombe said:
“I have been impressed by many aspects of the PCC’s work since I took over as Chairman – not least, the extent to which it works hard behind the scenes to minimise intrusion and resolve complaints quickly and amicably. However, there has not been an independent review of the PCC’s governance since it was created in 1991, and I think it is important periodically to reflect on the way an organisation works to make sure we have taken account of good practice elsewhere and wider public expectations. The review group will also want to consider the findings of the Select Committee on Culture, Media and Sport when it completes its report later this summer on press standards, privacy and libel.
“For all those reasons, I have asked Vivien Hepworth – who has experience of many different bodies in the public, private and NGO sectors as well as the PCC – to chair this review. She is stepping down before the end of her final term on the PCC board in order to undertake this review, and I have asked for her report in Spring 2010. Further appointments to the review group will be made shortly.”
Vivien Hepworth said: “I am honoured to have been asked by Peta Buscombe to chair this governance review. I am a strong believer in self-regulation of the press, but it must constantly adapt in order to prosper. It is the right time for a fresh and independent look at the areas this review will consider. In my view, this initiative underlines the PCC’s flexibility – something that is one of the hallmarks and advantages of non-statutory regulation. I will step down from the board of the PCC before this review group starts work in the autumn”.
Read more here.
Thursday, August 6, 2009
In the last decade in New South Wales, there have been a number of challenges to 'unreasonable' jury verdicts. As a consequence, the role of juries in defamation trials has recently been questioned in some quarters. This paper argues that juries themselves are not the problem. Given the centrality of the 'ordinary, reasonable reader' to defamation law, juries, embodying the 'ordinary, reasonable reader', play an important role, representing community values and understanding in defamation litigation. Rather, the complex principles and procedures which have developed around defamation law are the real problem. The solution is not the abolition of juries but the reform of defamation law and practice.
Download the article from SSRN here.
From the FCC:
Today, in conjunction with the “Feds Feed Families” food drive, Federal Communications Commission Chairman Julius Genachowski announced a “Chairman’s Challenge” to call on FCC employees to raise 20,000 pounds of food to benefit the D.C. Capital Area Food Bank and other food banks across the country.
“The employees of the FCC have always demonstrated their ability to rise to a challenge and there is no bigger opportunity for impact than to participate in helping the community in which we work,” Chairman Genachowski said.
The “Feds Feed Families” campaign will run until August 28, 2009 and is part of President Barack Obama’s “United We Serve” initiative.
Read more here.
Read more here.
Wednesday, August 5, 2009
The American Library Association, the Association of Research Libraries, and the Association of College and Research Libraries are among those filing a friend of the court brief in the appeal of Fredrick Colting. He's appealing the lower court decision enjoining him from publishing "60 Years Later," which uses the character Holden Caulfield, created by J. D. Salinger. Here's a link to the brief for Mr. Colting.
Tuesday, August 4, 2009
Trade secret misappropriation litigation is often criticized for its negative effects on competition and speech. In particular, some accuse plaintiff trade-secret owners of filing complaints for the purpose of running a competitor out of business, or restraining individuals from discussing matters which are unfavorable to the company. This paper enters the discussion to critically assess whether there is reason to consider restricting these suits or changing the law.
The Article concludes that trade secret litigation on the whole does not inappropriately impinge on free speech rights. The fundamental nature of trade secret rights, in particular the underlying proprietary and corporate privacy interests, has implications for how courts and plaintiff trade-secret holders view, interpret, and approach these cases, and ultimately help illustrate why the free speech issues do not pose an overriding concern sufficient to justify restrictions on trade secret litigation. Even if certain cases sometimes come closer to offending defendants' free speech rights, these occasions and concerns are not unique to trade secret law. Instead, they stem from the broader issue of litigation misuse in civil cases, and the other areas of intellectual property litigation suffer from similar problems. Accordingly, any necessary modifications are best addressed in the context of general litigation reform, rather than singling out trade secret cases. Indeed, there are particular reasons not to be overly concerned about trade secret actions because existing litigation safeguards, when properly applied, should minimize the risk of free speech incursions.
Download the article from SSRN here.
For individuals, the basic architecture of computing is changing. That is obviously about the device itself, with the desktop or laptop computer now being supplemented with other computing devices such as the smartphone and the netbook. That switch, coupled with ubiquitous wireless access, means that many people have access to computing power whenever and wherever.
The way in which we use these devices has changed. We have switched from the freestanding world of the desktop computer and the next stage of surfing the Internet net to consume provided content to a world in which users interact with each other. This is the world of Web 2.0, the world of Google, Facebook and Twitter. This is not just a change in use, but also a change in the organization of computing power and storage, cloud-computing in phrase.
This is also a world of identity, often direct actual real me, on Facebook and Twitter; an authenticated identity to access my data stored in the cloud when I use Google Reader or Gmail or another cloud-based mail service; and a browser-identity when I use a search service. And this is also a world of advertising. Web 2.0 and cloud-computing services are often free to individuals, but they have to be paid for somehow, at that is usually through advertising. Advertising is also increasingly important in a world in which the integrity of the copy itself has weakened and the copy may no longer serve as a reliable means of organizing payment for content.
This combination of identity and advertising means that this will be targeted advertising, that is, advertising directed to some version of me, perhaps actual me as Facebook sees me or browser-me as Google sees me. Regulators are now confronting this intersection of commerce and identity. Individuals have a real interest in seeing targeted advertising work. That advertising supports the free services and content that we have all come to expect on the Internet. But individuals also have a strong interest in controlling their identities.
Regulators, especially in the European Union, are moving towards what they regard as "privacy friendly" default settings for information tracking by Web 2.0 providers. To date, default settings have usually put the burden on individuals to opt out of information tracking. An EU privacy-friendly approach would seem to reject that. But Web 2.0 providers and cloud-providers have strong tools for inducing opt in and, indeed, their ability to provide different levels of their services for different individuals should make it possible for them to assess quite carefully what it takes to get individuals to opt in to targeted advertising. So long as those service providers are not blocked from providing different levels of service to individuals who have not elected to receive targeted advertising, moving towards the EU's privacy-friendly defaults may have the virtue of pushing us away from an often not-so-meaningful default opt in towards more meaningfully calibrated opt ins exchanged for higher quality services, such as seeing fewer, better matched ads.
Britain's third largest party says advertisements intended for children should not be airbrushed in order to give youngsters a more realistic view of the world. Right now, say the Liberal Democrats, such ads are encouraging young people, particularly young women, to try for "completely unattainable images that no-one can live up to in real life". The Advertising Standards Authority (ASA) says it hasn't received many complaints about unrealistic images in ads, but the British Association of Aesthetic Plastic Surgeons says it is concerned about unrealistic promises in some ads for plastic surgery.
Read more here.
In its analysis the Supreme Court said,
29. The appellants did not contest the power of the Tribunal to make an order pursuant to section 4 of the Tribunals of Inquiry (Evidence) (Amendment) Act, 1979, as interpreted by this court in Kiberd v. Hamilton, cited above. Mr Donal O’Donnell, Senior Counsel, for the appellant's submitted that Clause J (5) of the Terms of Reference of the Tribunal, being expressed in negative form, did not apply. He also argued that the Tribunal was engaging in a "leak inquiry” which would not assist it in enquiring into matter the subject matter of its Terms of Reference. The appellants argued in their written submissions that the documents at issue are not confidential and the Tribunal did not have any authority to create the confidentiality for which it contends. They relied on Mahon v. Post Publications Limited  3 I.R. 338.
30. The principal, indeed almost the exclusive, focus of Mr O'Donnell's submissions was a critique of the balance struck by the High Court between the rights of the Tribunal and of the appellants. He said that, by virtue of the provisions of the European Convention on Human Rights Act, 2003, Article 10 of the Convention applied, respectively, to the Tribunal as an "organ of the State" and to the High Court when interpreting either the common law or relevant statutes.
31. Following a comprehensive survey of the case-law of the European Court of Human Rights, he submitted that the balance has almost always been struck by that court in favour of protection of journalists’ sources. Extraordinarily strong countervailing circumstances are required before a journalist can be obliged to disclose sources.
32. Mr O'Donnell criticised what he called the “fallacious logic" of the High Court judgment. In effect, he said, the judgment requires questions to be asked only in circumstances where they cannot achieve the object of identifying the source. The view of the High Court was that the Tribunal could require questions to be answered for the purpose of exculpating the Tribunal itself and not to enable the actual source to be identified. The High Court, he argued, was, in particular, led into error by reason of its extremely critical views regarding the destruction by the appellants of the documents. For that reason, the High Court had erroneously taken the view that the journalists’ privilege against disclosure had almost no weight.
33. Mr Michael Collins, Senior Counsel, for the Tribunal, accepted the link between the fundamental right of freedom of expression, guaranteed by Article 10 of the Convention, the privilege of journalists with regard to their sources and the need to recognise the "chilling effect" of an order for disclosure of sources. He referred to the trust and confidence which exists between the journalist and the source but argued that this is significantly weakened and the privilege would be entitled to very slight weight when the source is anonymous.
Mr Collins laid particular emphasis on the right of Tribunals generally to carry on preliminary investigations in private and to protect the confidentiality of persons cooperating with it in its private phase. The Tribunal has a legitimate interest, in Convention terms, in seeking to identify the source of a leak of confidential information.
Mr Collins referred to case-law in the United States, in particular the decision of the United States Supreme Court in Branzburg v Hayes, discussed later, declining First Amendment protection to journalists refusing to give evidence before a grand jury.
Confidentiality of information; Power of Tribunal
34. The appellants do not seriously contest the power of the Tribunal to inquire into the unauthorised disclosure of its confidential information. The decision of this Court in Kiberd v Hamilton, cited above is conclusive on the point. It concerned an inquiry by Mr Justice Hamilton as Chairman and sole member of the Tribunals of Inquiry into the Beef Processing Industry into an unauthorised disclosure and publication in a newspaper of information confidential to the Tribunal. The newspaper contested the power of the Tribunal. Blayney J delivered the unanimous judgment of this Court. In reliance on the judgment of this Court in State (Lynch) v Cooney  I.R. 337, he held that what had to be considered was, "firstly, whether the Tribunal’s opinion that the making of the order was necessary for the purpose of its functions was bona fide held, secondly, whether that opinion was supported by the facts, and finally, whether it can be said of it that it was not unreasonable.” The learned judge rejected the challenge to the jurisdiction of the Tribunal, noted that it was not contested that its opinion was bona fide held, and concluded that there were grounds to support the view of the Tribunal which was not unreasonable.
35. It is notable that the central issue of concern for the Tribunal in that case was the fear that, if people invited to cooperate with the Tribunal believed that information furnished confidentially by them would appear in the press, there was a real danger that witnesses would be dissuaded from coming forward with material relevant to the Tribunal’s inquiry. Kiberd v Hamilton, therefore, constitutes sufficient authority for the proposition that the Tribunal has power to investigate unauthorised disclosure of its confidential information. However, I am also satisfied that the High Court was correct to hold that Clause J (5) of the Terms of Reference of the Tribunal adopted by Resolution of Dáil Éireann passed on 17th November, 2004 confirmed the existence of that power.
It is not necessary to consider the English case of Norwich Pharmacal v Customs and Excise Commissioners  AC 133, which was discussed by counsel for the appellants at the hearing of the appeal, although that case and a number of cases which followed confirm the existence of a power in the courts to order disclosure of confidential information which has come into the possession even of innocent parties.
36. Both in the High Court and in argument before this Court, reference was made to the case of Mahon v Post Publications, cited above. That case concerned enforcement of the confidentiality of documents circulated in briefs to persons affected by a matter to be inquired into in public by the Tribunal. This court, by a majority, upheld the decision in the High Court (Kelly J) dismissing the application of the Tribunal to enforce confidentiality in those circumstances. In the course of my own judgment for the majority, I said:
“Clearly, a matter which I wish to make perfectly clear, none of this concerns the confidentiality of the entirely private proceedings of the Tribunal in its investigative phase, conducted prior to the decision to go on to public hearings and to circulate briefs. That is the ordinary right to confidentiality that any person or body possesses in respect of his, her or its own internal activities. That type of confidentiality has already been dealt with by this Court in O'Callaghan v. Mahon …  2 I.R. 32. ……Nobody, whether in or out of the media, has the right to invade or trespass upon the internal workings of any individual or organisation.”
37. The communications between the Tribunal and Mr McKenna, which gave rise to the publication of Mr Keena’s article, took place during the private, investigative phase of the work of the Tribunal. The Tribunal had not decided, at that stage, whether it would hold any public hearings about the payment of monies to Mr Bertie Ahern. Ms Kennedy herself, if unintentionally, highlighted the essential confidentiality of the information by justifying publication precisely for the reason that the matter might never be disclosed in public. Ms Gilvarry emphasised in her affidavit the “concern of the Tribunal …to protect the integrity of its enquiries and to maintain the confidence of the public and the confidence of those who had dealings with the Tribunal…”
38. I am satisfied that these concerns are legitimate. The information communicated to Mr McKenna was highly confidential and sensitive. The Tribunal was not only entitled but bound to make every effort to keep it so. It was, of course, quite clear to every person reading the Tribunal’s letter to Mr McKenna that it was and was expressed to be entirely private and confidential.
39. The High Court was, in my view, perfectly correct to uphold the power of the Tribunal to conduct an inquiry into the source of the unauthorised disclosure and to hold that the documents were confidential.
40. The appeal, therefore, turns entirely on the third point, namely on the balance struck by the High Court between the power of the Tribunal to investigate and the right of the appellants to refuse to disclose any information about their sources.
The European Convention on Human Rights
41. I have postponed to this point reference to the Convention and the decisions of the European Court of Human Rights. Both have, of course, been considered in great detail by the High Court in its judgment and have been argued by both parties to the appeal. Those decisions are relevant to the outcome of the present proceedings because of the effect that has been given to the Convention in Irish law.
42. The European Convention on Human Rights Act, 2003 was, as its long title states, passed in order to give "further effect subject to the Constitution to certain provisions" of the Convention (emphasis added). The Act is necessarily, as it says, “subject to the Constitution.”
Section 2(1) of the Act provides that:
“ In interpreting and applying any statutory provision or rule of law, a court shall, in so far as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State’s obligations under the Convention provisions.”
Section 3(1) provides:
“Subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the State's obligations under the Convention provisions.”
The definition of an “organ of State” in section 1 includes “a tribunal………which is established by law or through which any of the legislative, executive or judicial powers of the State are exercised.” The Tribunal undoubtedly comes within that definition.
Section 4 provides:
Judicial notice shall be taken of the Convention provisions and of—
(a) any declaration, decision, advisory opinion or judgment of the European Court of Human Rights established under the Convention on any question in respect of which that Court has jurisdiction,
(b) any decision or opinion of the European Commission of Human Rights so established on any question in respect of which it had jurisdiction,
(c) any decision of the Committee of Ministers established under the Statute of the Council of Europe on any question in respect of which it has jurisdiction,
and a court shall, when interpreting and applying the Convention provisions, take due account of the principles laid down by those declarations, decisions, advisory opinions, opinions and judgments.
43. The combined effect of these provisions for the purposes of the present case is that the relevant sections of the Tribunals of Inquiry legislation must be interpreted in “a manner compatible with the State’s obligations under the Convention provisions.” For that purpose, the court must take judicial notice of the Convention provisions themselves and of the various documents mentioned in section 4 of the Act of 2003. Foremost among those are the judgments of the European Court of Human Rights. The requirement that the Court take judicial notice of the Convention and of the various documents referred to means that they can be relied upon by the Court without special proof. The Court must, in addition, as the concluding words of the provision make clear, “take due account” of the principles laid down in those judgments. This is not the same as saying that they constitute binding precedents.
44. Although no issue arises in the present case of conflict between the Convention provisions and the Constitution, it is important to recall that, in the event of such a conflict, it is the Constitution which must prevail. Both the High Court and this Court on appeal have been concerned with the effect that is to be given in Irish law to the provisions of the Tribunals of Inquiry Acts and the orders made by the Tribunal. It is to state the obvious that a distinction must be made between this exercise of jurisdiction and that performed by the Court at Strasbourg exercising jurisdiction in international law, potentially leading to decisions binding on the State.
45. Article 10 of the European Convention on Human Rights provides as follows:
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
46. The rights of the appellants to freedom of expression pursuant to Article 10.1 are not in issue. Everything turns on whether the encroachment upon that right by means of the inquiry instituted by the Tribunal is “necessary in a democratic society………………for preventing the disclosure of information received in confidence…”
47. The appellants cited from a large number of judgments of the European Court of Human Rights dealing with restrictions or penalties imposed by Member States claiming reliance on Article 10.2. Amongst these decisions were Lingens v. Austria (1986) 87 EHRR 329 Castells v. Spain, (1992) 14 EHRR 445 Fressoz and Roire v. France, (1999) 31 EHRR 28 Tromso v. Norway, (1999) 29 EHRR 12 Radio Twist AS v. Slovakia, (Unreported, European Court of Human Rights, 19 December 2006).
These judgments emphasise not merely the fundamental right to freedom of expression but, in the case of the press, its indispensable contribution to the functioning of a democratic society.
The following statements from the judgment of the court in Lingens v. Austria in 1986 show the general approach of the Court:
“39. The adjective ‘necessary’, within the meaning of Article 10.2, implies the existence of a ‘pressing social need’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with a European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘restriction’ or ‘penalty’ is reconcilable with freedom of expression as protected by Article 10.
40. In exercising its supervisory jurisdiction, the Court cannot confine itself to considering the impugned court decisions in isolation; it must look at them in the light of the case as a whole, including the articles held against the applicant and the context in which they were written. The Court must determine whether the interference at issue was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the Austrian courts to justify it are ‘relevant and sufficient’.
These principles are of particular importance as far as the press is concerned. Whilst the press must not overstep the bounds set, inter alia, for the ‘protection of the reputation of others’, it is nevertheless incumbent on it to impart information and ideas on political issues just as on those in other areas of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them. In this connection, the Court cannot accept the opinion, expressed in the judgment of the Vienna Court of Appeal, to the effect that the task of the press was to impart information, the interpretation of which had to be left primarily to the reader.
42. Freedom of the press furthermore affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders. More generally, freedom of political debate is at the very core of the concept of a democratic society which prevails throughout the Convention.
The limits of acceptable criticism are accordingly wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance. No doubt Article 10 para. 2 enables the reputation of others - that is to say, of all individuals - to be protected, and this protection extends to politicians too, even when they are not acting in their private capacity; but in such cases the requirements of such protection have to be weighed in relation to the interests of open discussion of political issues.”
48. The European Court has been at pains to emphasise that the right to freedom of expression is not unlimited. It usually states, as in the above passage, that the press must not "overstep certain bounds.” The court has said that "Article 10 does not…… guarantee a wholly unrestricted freedom of expression even with respect to press coverage of matters of serious public concern.” For example, it may be necessary, depending on the circumstances, to balance an individual's right to private and family life guaranteed by Article 8 of the Convention. Member States have a "certain margin of appreciation in assessing whether” there is a need for a restriction.
49. Nonetheless, the court constantly emphasises the value of a free press as one of the essential foundations of a democratic society, that the press generates and promotes political debate, informs the public in time of elections, scrutinises the behaviour of governments and public officials and, for these reasons, that persons in public life must expect to be subjected to disclosure about their financial and other affairs, to criticism and to less favourable treatment than those in private life. Generally, therefore, restrictions on freedom of expression must be justified by an "overriding requirement in the public interest.”
50. One of the public interests recognised by Article 10.2 as potentially justifying a restriction on the exercise of freedom of expression is “preventing the disclosure of information received in confidence.” It is cases concerning this precise issue that are the most relevant to the present appeal. Two cases deserve careful consideration.
In the case of Fressoz and Roire, cited above, the applicants were a publisher and a journalist with the French satirical newspaper, Le Canard enchaîné. During a period of industrial unrest involving the motor-car manufacturer, Peugeot, the applicants published an article including details of the personal notices of assessment to tax of the chairman and managing director of the company. The second applicant said that the documents had been sent anonymously in an envelope addressed to him by name. The applicants were prosecuted and ultimately convicted by a Paris court of an offence of handling these documents which had been obtained through a breach of professional confidence by an unidentified tax official. They were fined 10,000 and 5,000FF respectively and ordered to pay the managing director 1FF for non-pecuniary damage and 10,000FF for costs.
51. The European Court reiterated its general case-law, emphasising, in particular, the public interest in the subject matter of the article: an industrial dispute at one of the major French motor car manufacturers. The court accepted, at paragraph 52, that "people exercising freedom of expression, including journalists, undertake ‘ duties and responsibilities’ the scope of which depends on the situation and technical means they use.” The court proceeded:
“ While recognising the vital role played by the press in a democratic society, the court stresses that journalists cannot, in principle, be released from their duty to obey the ordinary criminal law on the basis that Article 10 affords them protection. Indeed, paragraph 2 of article 10 defines the boundaries of the exercise of freedom of expression.”
The court went on to explain, at paragraph 53, that it “must …determine whether the objective of protecting fiscal confidentiality, which in itself is legitimate, constituted a relevant and sufficient justification for the interference."
The court then explained the extent to which information about the tax affairs of individuals is, in fact, generally available in France. The French government had accepted that "a degree of transparency exists regarding earnings and pay rises.” The extent of this transparency was significant:
“Thus local taxpayers may consult a list of the people liable to tax in their municipality, with details of each taxpayer’s taxable income and tax liability. While that information cannot be disseminated, it is thus accessible to a large number of people who may in turn pass it on to others. Although publication of the tax assessments in the present case was prohibited, the information they contained was not confidential.………… Accordingly, there was no overriding requirement that the information to be protected as confidential.”
The court noted that there had been no dispute about the accuracy of the article or the good faith of the journalist, who acted in accordance with the standards governing his profession. This led to the court to find a violation of Article 10. It concluded, at paragraph 56, that there was not: "a reasonable relationship of proportionality between the legitimate aim pursued by the journalists’ conviction and the means deployed to achieve that aim given the interest of democratic society has in ensuring and preserving freedom of the press.”
52. Goodwin v United Kingdom (1996) EHRR 123, although decided some years prior to the Canard enchaîné case just described comes in conveniently at this point, since it is directly concerned with an order that a journalist disclose his source. That case concerned commercial information of a highly confidential and secret character: the corporate plan for the refinancing of an important company. It was claimed that disclosure would threaten the business and the livelihood of its employees. The information was communicated to the journalist by a person who, though known to the journalist, wished to remain anonymous. The company managed to secure an interim injunction restraining publication: it had learned of the disclosure of the information because the journalist had contacted it to make some enquiries. The fact of this injunction was highly material to the decision of the court. The English courts, all the way to the House of Lords, made orders requiring the journalist to disclose his source. He refused. The House of Lords fined him £5000 for contempt of court. In its judgment on the journalist’s case, the European court had this to say about journalistic sources:
“Protection of journalistic sources is one of the basic conditions for press freedom, as is reflected in the laws and the professional codes of conduct in a number of Contracting States and is affirmed in several international instruments on journalistic freedoms. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest.”
The court laid emphasis on the need for any restriction on freedom of expression to be “convincingly established.” It said that the “national margin of appreciation is circumscribed by the interest of democratic society in ensuring and maintaining a free press.” Therefore, "limitations on the confidentiality of journalistic sources call for the most careful scrutiny by the court.”
The court then analysed the justification put forward by the company in the national court and by the United Kingdom government in its defence to the application. It attached great weight to the fact that the injunctions granted to the company effectively prevented further dissemination of the confidential information, which had largely achieved the objective sought by the disclosure order. It accepted, nonetheless, that the injunctions could not prevent direct communication from the journalist’s original source to the company's customers or competitors. While accepting that these were undoubtedly relevant considerations, it considered that the additional restriction which they entailed "was not supported by sufficient reasons for the purposes of Article 10(2) of the Convention.” Ultimately, the court considered that the interests protected by that Article 10 "tip the balance of competing interests in favour of the interest of Democratic society in securing a free press" and that "the residual threat of damage through dissemination of the confidential information otherwise than by the press, in obtaining compensation and in unmasking a disloyal employee or collaborator were, even if considered cumulatively, not sufficient to outweigh the vital public interest in the protection of the applicant journalist’s source.”
It should be noted that the European Court did not doubt that there was a “pressing social need” for restraint of publication of the information.
The Court also comments on the state of US law in the opinion, noting, "There is no federal legislative protection of journalists’ sources. Moreover, it seems fair to say that the existence of a journalistic privilege of nondisclosure is highly contested in the federal courts and that, at the very least, it is certainly not regarded, where it is recognised, as absolute.... The American courts display a notable reluctance to allow to journalists a form of immunity from the obligation incumbent on all other citizens to obey the law, in particular, to give evidence when summoned and generally to participate in the judicial process. The federal courts have shown themselves willing, in the very recent past, to imprison journalists for contempt of court for refusal to give evidence before a grand jury, where a source would be revealed.
Dr. O'Dell also provides helpful analysis here.