Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, January 29, 2016

Steeves on Performing "Appropriate" Femininity on Social Media

Valerie Steeves, University of Ottawa, Criminology, has published 'Pretty and Just a Little Bit Sexy, I Guess': Publicity, Privacy, and the Pressure to Perform 'Appropriate' Femininity on Social Media in eGirls, eCitizens: Putting Technology, Theory and Policy into Dialogue with Girls' and Young Women's Voices (University of Ottawa Press, 2015). Here is the abstract.

In this chapter, I explore the qualitative findings of the eGirls Project to test these assumptions against the lived experiences of girls and young women living in Ontario, Canada. When the eGirls Project was initiated, one of the aims was to map the variety of ways that girls could perform emancipatory identities on social media.

Download the essay from SSRN at the link.

January 29, 2016 | Permalink

Thursday, January 28, 2016

FCC Chair Wants To Open Up Cable Box Market

FCC Chair Tom Wheeler wants to unleash consumers from their cable boxes.  In this piece for Re/Code, he writes in part that the cost of paying for a set-up box adds significantly to the cost of cable subscriptions and he thinks it's time for the FCC to address that issue.

One way to do that effectively, says Mr. Wheeler, is to allow third party manufacturers, like Google, Apple, and Microosoft, to provide consumers with boxes and other devices that would allow them to get cable services without paying their cable companies for those services. Here's a link to a fact sheet on the proposal.

More here from NPR.


January 28, 2016 | Permalink

Wednesday, January 27, 2016

Randazza on Freedom of Expression and Morality Based Impediments to the Enforcement of Intellectual Property RIghts

Marc J. Randazza, Randazza Legal Group and World Intellectual Property Organization (WIPO), is publishing Freedom of Expression and Morality Based Impediments to the Enforcement of Intellectual Property Rights in volume 16 of the Nevada Law Journal (2016). Here is the abstract.

In the case of intellectual property rights (IPRs), some nations erect barriers to the protection of IPRs on the basis of "morality." This paper will examine the implications of morality-based impediments to the enforcement of IPRs and their supportability under international agreements. There are significant freedom of expression issues to consider when we think about "morality" getting in the way of intellectual property rights. If that description doesn't make you run to download it, it manages to include an academic discussion of "Cumfiesta", "Screw You", "Nut Sack Ale", and Japanese porn being stolen in Taiwan. Beat that.

Download the article from SSRN at the link.

January 27, 2016 | Permalink

Tuesday, January 26, 2016

Kolber on Views of First Amendment Thought Privacy

Adam J. Kolber, Brooklyn Law School, is publishing Two Views of First Amendment Thought Privacy in the University of Pennsylvania Journal of Constitutional Law. Here is the abstract.

For centuries, our thought privacy has been reasonably well protected by the difficulty of deciphering other people’s thoughts. This natural protection is in jeopardy, however, as emerging technologies improve our ability to, loosely speaking, read minds. When these methods get cheaper and more accurate, the state may seek to monitor and regulate thought in ways previously impossible. The First Amendment undoubtedly protects thought privacy, but current law leaves open two very different levels of protection: On one view, thought is only protected when intertwined with expression. If so, we have rather limited First Amendment freedom of thought, since thought often goes unexpressed. Alternatively, thought may be protected independent of expression. If so, we have more expansive First Amendment freedom of thought. I explore these views by considering blackjack players who “count cards.” Card counters perform mental calculations on publicly available information — the cards dealt in plain sight — in order to turn the odds in their favor. Even though card counting does not obviously implicate expression, I argue that the First Amendment plausibly gives us the right to count cards in our own minds. More controversially, I argue that the Amendment may even protect the right to count cards when combined with an overt action, such as betting in a casino. A criminal prohibition on betting while counting cards might constitute impermissible thought-content discrimination by permitting bettors to make the basic calculations required to play blackjack but not the more accurate calculations used to count cards. It is difficult, however, to predict whether courts would recognize thought-content discrimination and, if they would, how they would cabin its scope.

Download the article from SSRN at the link.

January 26, 2016 | Permalink

Froomkin on Anonymity and Identification

A. Michael Froomkin, University of Miami School of Law, has published From Anonymity to Identification at 1 Journal of Self-Regulation and Regulation 121 (2015). Here is the abstract.

This article examines whether anonymity online has a future. In the early days of the Internet, strong cryptography, anonymous remailers, and a relative lack of surveillance created an environment conducive to anonymous communication. Today, the outlook for online anonymity is poor. Several forces combine against it: ideologies that hold that anonymity is dangerous, or that identifying evil-doers is more important than ensuring a safe mechanism for unpopular speech; the profitability of identification in commerce; government surveillance; the influence of intellectual property interests and in requiring hardware and other tools that enforce identification; and the law at both national and supranational levels. As a result of these forces, online anonymity is now much more difficult than previously, and looks to become less and less possible. Nevertheless, the ability to speak truly freely remains an important ‘safety valve’ technology for the oppressed, for dissidents, and for whistle-blowers. The article argues that as data collection online merges with data collection offline, the ability to speak anonymously online will only become more valuable. Technical changes will be required if online anonymity is to remain possible. Whether these changes are possible depends on whether the public comes to appreciate and value the option of anonymous speech while it is still possible to engineer mechanisms to permit it.

Download the article from SSRN at the link.

January 26, 2016 | Permalink

Barnhizer on Freedom of Speech at Universities

David Barnhizer, Cleveland-Marshall College of Law, has published 'Fire Away': I Have No Right to Not Be Insulted as Cleveland-Marshall Legal Studies Paper No. 290. Here is the abstract.
Universities are the institutions responsible for advancing our freedom of thought and discourse through the work of independent scholars and the teaching of each generation of students. But for several decades, universities and other educational institutions have increasingly set up rules aimed at protecting individuals and groups from criticism that those individuals and groups consider insensitive, offensive, harassing, intolerant and disrespectful, critical of their core belief systems or threats to their agendas. Even though it has been claimed that disadvantaged interest groups have a right to use one-sided tactics of intolerance against those they consider to be responsible for their misfortunes in a democracy this is a fundamentally wrong policy that ultimately tears apart the social fabric. I believe that many of the outraged reactions to speakers’ phrasing in many areas where “outrage” is voiced are insincere and done primarily or exclusively for purposes of gaining political advantage. This “fake offensiveness” -- “or OMG I am so hurt and offended” -- occurs because it is the ammunition by which interest groups gain political advantage. Yet universities, our supposed hotbeds of free and critical thinking, are co-conspirators in suppressing the intellectual independence and stifling the values they are supposed to be instilling in their students. The Renaissance and the Enlightenment were intended to free us from centuries of darkness and ignorance in ways that allowed the full flourishing of humanity. Unfortunately it turns out that we are less as a species than hoped and considerably less interested in open-minded freedom of thought and expression. Albert Schweitzer argued decades ago: “The past has, no doubt, seen the struggle of the free-thinking individual against the fettered spirit of a whole society, but the problem has never presented itself on the scale on which it does to-day, because the fettering of the collective spirit…by modern organizations, [by] modern unreflectiveness, and [by] modern popular passions, is a phenomenon without precedent in history.” The situation has rapidly degraded since Schweitzer spoke. There are several causes. In part the decline is due to the emergence of the Internet and related communications technologies. Although they offer incredible tools for the management and dissemination of knowledge, they have unfortunately bestowed power on fanatics and ideologues. In doing so we have opened an electronic “Pandora’s Box” full of hate, vitriol and ignorance. A result is the rapid fragmentation of society into aggressive actors and indignant cults. This has produced a social and political balkanization dominated by single-interest groups that are intent on achieving narrow agendas. These groups and political activists operate without any willingness to consider how their interests fit within the dimensions of an overall community where balance is necessary and compromise is not weakness but the “glue” that holds us together.
Download the article from SSRN at the link.

January 26, 2016 | Permalink

Walden on Press Regulation in a Converged Environment

Ian Walden, Queen Mary University, London, School of Law, has published Press Regulation in a Converged Environment as Queen Mary School of Law Legal Studies Research Paper No. 217/2016. Here is the abstract.

With the Leveson Inquiry, the Royal Charter and a forthcoming revision of the Communications Act 2003, the need to re-design the existing regulatory framework for the press in a converging media environment is becoming increasingly apparent. This contribution considers the need for a regulatory scheme for the press and the difficulties of preserving freedom of expression while protecting and balancing other fundamental rights.
Download the article from SSRN at the link.

January 26, 2016 | Permalink

Monday, January 25, 2016

Peukert on Public Domain Doctrine in German and EU Law

Alexander Peukert, Goether University Frankfurt, Faculty of Law; Cluster of Excellence Normative Orders, is publishing A Doctrine of the Public Domain in The Innovation Society and Intellectual Property (Josef Drexl, ed.; Edward Elgar Publishing, 2016) (EIPIN Series). Here is the abstract.

The article, which summarizes key findings of my German book ‘Die Gemeinfreiheit. Begriff, Funktion, Dogmatik’ (‘The Public Domain: Theory, Function, Doctrine’), asks whether there are any provisions or principles under German and EU law that protect the public domain from interference by the legislature, courts and private parties. In order to answer this question, it is necessary to step out of the intellectual property (IP) system and to analyze this body of law from the outside, and – even more important – to develop a positive legal conception of the public domain as such. By giving the public domain a proper doctrinal place in the legal system, the structural asymmetry between heavily theorized and protected IP rights on the one hand and a neglected public domain on the other is countered. The overarching normative purpose is to develop a framework for a balanced IP system, which can only be achieved if the public domain forms an integral part of the overall regulation of information.

Download the essay from SSRN at the link.

January 25, 2016 | Permalink

Friday, January 22, 2016

Hunter and Lastowka on BarbieTM as a Subject of IP Law

Dan Hunter, Swinburne Law School and New York Law School, and Greg Lastowka, Rutgers Law School, have published BarbieTM at 18 Tulane Journal of Technology & Intellectual Property 113 (2015). Here is the abstract.

Intellectual property laws are the means by which corporations allow access to their products. Mattel Inc.’s Barbie doll is highly dependent on the intellectual property system, and this Essay provides the first serious account of the development of Barbie as an object of intellectual property. It demonstrates the significance of Barbie as an intellectual property object, and it traces how intellectual property laws emerged as such a powerful technology of control in the period from Barbie’s birth in 1959 to the present. The Essay also shows that the great unrecognized feature of the intellectual property system is its ability to manipulate desire.

Download the essay from SSRN at the link.

January 22, 2016 | Permalink

Thursday, January 21, 2016

Rolph on Anonymity and Defamation in Australian, English, and Canadian Cases

David Rolph, University of Sydney Faculty of Law, has published Anonymity and Defamation in Secrecy, Law and Society (G. Martin, R. Scott Brady, and M. Kumar, eds. London, UK: Routledge, 2015). Here is the abstract.

Ordinarily, a plaintiff in a defamation claim is not, and does not seek to be, anonymous. The nature of the interest protected by the tort of defamation - reputation - is indelibly public, being what other people think of the plaintiff. To vindicate the plaintiff's reputation in a defamation action requires the plaintiff to be named. Increasingly, however, there are cases in which plaintiffs in defamation cases seek, and, in some cases, are granted, anonymity. This chapter explores the paradox of the anonymous defamation plaintiff. It focuses on recent Australian, English and Canadian cases, analysing the possible reasons for making defamation plaintiffs anonymous, noting particularly their use in cases involving social media and where both reputation and privacy are arguably implicated. It also considers the consequences of making defamation plaintiffs more anonymous routinely, particularly for the principle of open justice and for fundamental principles of defamation law.

Download the essay from SSRN at the link.

January 21, 2016 | Permalink

Call For Applications, 2016 Annenberg-Oxford Media Policy Summer Institute

From the Center for Global Communications Studies, the Annenberg School for Communications, University of Pennsylvania, and the Programme in Comparative Media Law and Policy, University of Oxford Centre for Socio-Legal Studies




The Center for Global Communication Studies at the Annenberg School for Communication, University of Pennsylvania and the Programme in Comparative Media Law and Policy (PCMLP) at the University of Oxford’s Centre for Socio-Legal Studies are pleased to invite applications to the 18th annual Annenberg-Oxford Media Policy Summer Institute, to be held from Monday, June 27 to Friday, July 8, 2016 at the University of Oxford.

For seventeen years, the Institute has brought together top early career communications scholars, media lawyers and regulators, internet governance experts, and freedom of expression and human rights activists from countries around the world to discuss the effects of technology and policy from a global and multidisciplinary perspective. The Summer Institute provides participants with an intensive two week interdisciplinary curriculum that combines expert instruction from media policymakers and scholars with hands-on activities such as stakeholder mapping, policy analysis, group case studies, and participant presentations.

The 2016 Annenberg-Oxford Summer Institute seeks applicants whose research or work is related to the relationship between international media laws and national jurisdictions, online censorship and surveillance, the role of the media in political change and conflict, strategic communications and propaganda, online extremism and social media, and global internet governance processes. Applications are welcomed from students studying communications, sociology, political science, international relations, area studies, anthropology, information studies, and  related disciplines. Practitioners working in media, law, policy, regulation, and technology are also encouraged to apply.

Preparing, motivating, and supporting students and practitioners who aspire to pursue a career in media policy, the Annenberg-Oxford Institute endeavors to broaden and expand the pool of talented young scholars engaged in media studies and to connect these individuals to elite scholars and practitioners from around the world. The Institute’s alumni are a vibrant group who continue to engage in the program, collaborate through network ties, and have become leaders at the top national and international nonprofits, advocacy organizations, government agencies, corporations, and academic institutions. Recent past Institutes have included participants from India, Kenya, Brazil, the Philippines, Jordan, Turkey, Pakistan, China, Italy, Israel, Colombia, Iran, Myanmar, South Sudan, and Nigeria.

The application for the 2016 Summer Institute is now open and can be found here. The deadline for all applications is Monday April 4, 2016 at 5:00PM EST. Applications will be reviewed on a rolling basis before the deadline, so please submit as soon as possible. Several partial scholarships are available to top applicants. For more information please see our FAQ page.

January 21, 2016 | Permalink

Cohen-Almagor on The Charlie Hebdo Affair: Between Speech & Terror

Raphael Cohen-Almagor, University of Hull, is publishing The Charlie Hebdo Affair: Between Speech & Terror in The Critique's Great War Series Part II: Charlie Hebdo, Free Speech & Religious Violence, 2016. Here is the abstract.

John is standing in the city square and sings loudly. He holds a baseball bat and carries a big sign that says: “I dare you to criticize my singing”. John is 2 meter tall and his physics suggests that he spends many of his free hours in a gym. It seems he enjoys many free hours. The expression on his face leaves little doubt as to the likely consequences of such a dare. You have the freedom and choice to ridicule him, even more so because you do find his singing most disturbing. Still, would you dare him? The Charlie Hebdo affair has brought to the fore four major issues: [1] Freedom of expression and offence [2] The fallacy of universal liberalism [3] Globalization [4] Sombre yet sober thoughts about the era in which we live. I analyse the terror attack on the Charlie Hebdo offices through several prisms: freedom of expression; the principle of profound offence; the fallacy of universal liberalism; globalisation, and the era in which we live of violence and terror. It is argued that after the violent episodes of “The Satanic Verses”, The Danish Cartoons and the Hebdo Cartoons we know full well that freedom of speech has a price. Responsible people should weigh the consequences of their conduct – action and speech. We should learn from these affairs, take offence seriously, acknowledge the fallacy of universalism and the reality of globalisation where speech in a liberal part of the world may provoke negative and violent reaction worldwide. We should fight for our principles while being cognizant of the price tag which might be high and bloody. And the price would not necessarily be paid only by the speaker. The speaker also endangers others. Responsible speakers should ask themselves whether their struggle to express outrageous ideas freely justifies putting other people’s lives as risk. Our freedoms should always be tempered by responsibility.

Download the essay from SSRN at the link.

January 21, 2016 | Permalink

Wednesday, January 20, 2016

Voss on EU Data Privacy Law After the Google Spain "Right to Be Forgotten Ruling" and the Paris Terrorist Attacks

W. Gregory Voss, Toulouse Business School, is publishing After Google Spain and Charlie Hebdo: The Continuing Evolution of European Union Data Privacy Law in a Time of Change in volume 71 of the Business Lawyer (2015/2016). Here is the abstract.
This article investigates various developments over that year that helped (or are helping) reshape European Union data privacy law, building around two important events: the Court of Justice of the European Union's Google Spain decision, applying a form of a "right to be forgotten," and the Paris terrorist attacks on the satirical journal Charlie Hebdo in January 2015 after which additional security measures involving websites and surveillance in France were adopted and advances on an EU directive on PNR data were made. The EU member state court decisions that came in the wake of the Google Spain decision and that give a right to individuals in the EU to have certain search engine results delisted, which raise issues for Internet search engines, publishers of information, and potentially other Internet intermediaries, are discussed, as are Google’s attempts to come to terms with the Google Spain decision. In addition, this article covers the continuing EU member state data protection agency enforcement action on Google's privacy policy, that were detailed in the author’s prior article – "European Data Privacy Law Developments," with lessons being drawn for businesses regarding privacy policies and data protection compliance generally. The surveillance measures discussed apply to electronic and other communication methods and introduce possibilities in France for mass data collection. Thus, the French legislation adopted in part in reaction to terrorist attacks, described by some as analog to the U.S. Patriot Act – evidences modifications related to security affecting the business legal environment for internet and telecommunications companies and others. Similarly, EU efforts to allow greater passenger data sharing following the Charlie Hebdo attacks also show the continuing tension between data privacy – considered a fundamental right in the EU – and security. Finally, ongoing work on the European Union data protection law reform – which will apply to non-European companies offering goods or services to individuals in Europe or monitoring their behavior – is detailed.
Download the article from SSRN at the link.

January 20, 2016 | Permalink

Sag on IP Litigation in United States District Courts, 2015

Matthew Sag, Loyola University Chicago School of Law, has published IP Litigation in United States District Courts - 2015 Update. Here is the abstract.

In a previous paper, "IP Litigation in United States District Courts: 1994 to 2014", I undertook a broad-based empirical review of Intellectual Property litigation in U.S. federal district courts from 1994 to 2014. This brief update extends that data to include the year 2015. This update contains new data on: (1) the overall state of copyright, patent and trademark litigation, (2) copyright litigation and the John Doe phenomenon, (3) the continuation of the patent litigation explosion and (4) the geographic distribution of copyright, patent and trademark litigation. This Update is not intended as a stand-alone article, it should be read in conjunction with the previous paper.

Download the article from SSRN at the link.

January 20, 2016 | Permalink

Rowbottom on the Campbell Case and the Use of Privacy Law to Constrain Media Power

Jacob H. Rowbottom, Oxford University Faculty of Law, is publishing A Landmark at a Turning Point: Campbell and the Use of Privacy Law to Constrain Media Power in volume 7 of the Journal of Media Law (2015). Here is the abstract.

This article argues that the decision in Campbell can be seen as a response to long-term concerns about the abuse of media power. After outlining some of the key developments in debates about privacy law, the article considers the features that distinguish the media as powerful institutions. It will be argued that the focus on media power has shaped the doctrine of misuse of private information, for example in expanding the scope of the tort and focusing on the public interest as the main defense. The decision in Campbell arrived at a moment when the communications environment was about to change dramatically. Since Campbell, the use of social media and the opportunities to share user-generated content has given many people the capacity to bring private facts to a large audience. The article will consider whether the Campbell tort remains applicable in the case of non-powerful publishers and looks at alternative ways to protect privacy.

Download the article from SSRN at the link.

January 20, 2016 | Permalink

El Ghoul, Guedhami, Nash, and Patel on the Role of the Media in Corporate Social Responsibility

Sadok El Ghoul, University of Alberta, Campus Saint-Jean, Omrane Guedhami, University of South Carolina, Moore School of Business, Robert C. Nash, Wake Forest University, and Ajay Patel, Wake Forest University, School of Business, have published New Evidence on the Role of the Media in Corporate Social Responsibility. Here is the abstract.

Prior research suggests that the media plays an important information intermediary role in capital markets. We investigate the role of the media in influencing firms’ engagement in corporate social responsibility (CSR) activities. Using a large sample of 4,453 unique firms from 53 countries over the period 2003 to 2012, we find strong evidence that firms engage in more CSR activities if located in countries where the media has more freedom. This relation is robust to using various proxies for media freedom and an alternative source of CSR data. In additional analyses, we find that the positive relation between media freedom and CSR engagement is stronger for better governed firms and for larger firms. Since the media have the ability to impact reputational capital, we conclude that media freedom affects firms’ incentives to engage in costly CSR activities.

Download the article from SSRN at the link.

January 20, 2016 | Permalink

Tuesday, January 19, 2016

McPeak On Social Media, Smartphones, and Proportional Privacy in Civil Discovery

Agnieszka McPeak, University of Toledo College of Law, has published Social Media, Smartphones, and Proportional Privacy in Civil Discovery at 64 University of Kansas Law Review 235(2015). Here is the abstract.


At its core, the discovery process in civil litigation relies on a balance between open access to information and protections against over-reaching. Although broad discovery is favored, courts simultaneously warn that the civil discovery process is not meant to be a fishing expedition. Thus, the value of achieving justice through complete and thorough access to information is counter-balanced by equally important limiting principles. These limiting principles include restrictions based on relevance, burden, expense, embarrassment, privilege, and proportionality. Essentially, these limiting principles draw on an important societal value: privacy. Privacy is a core concept that underlies the civil discovery rules, and it is one that courts must return to when resolving discovery disputes over digital data compilations. These compilations, particularly when viewed in the aggregate, present a detailed mosaic of one’s personal life. The result is a highly revealing portrait of personal details that implicate individual privacy rights. In some cases, discovery of the private portions of social media accounts or the contents of a personal smartphone should be limited based on privacy concerns. These privacy concerns can best be addressed as part of the proportionality analysis for defining the limits of civil discovery. The 2015 amendments to Rule 26 of the Federal Rules of Civil Procedure emphasize a proportionality inquiry as a key limit to discovery: the information sought must be proportional to the needs of the case. Although this test expressly considers the financial burden and expense of discovery, “burden” should go beyond mere financial considerations and instead encompass concepts like the privacy burden. Thus, this article proposes that the non-pecuniary burden on privacy should be factored into the proportionality analysis. By recognizing the need for proportional privacy, courts can draw meaningful boundaries to define the scope of discovery, effectively disaggregating digital data compilations to prevent overly intrusive discovery. Other tools within the court’s arsenal, such as protective orders, should be used more liberally to limit access to entire mosaics of highly personal information. This article defines discovery of digital data compilations, using private social media account contents and personal smartphones in ‘bring your own device’ workplaces as primary examples, and explains the historical development of civil discovery under the Federal Rules of Civil Procedure through the 2015 amendments. It also summarizes general principles of privacy law and existing discovery decisions as to social media accounts and smartphones, with an analysis of the intersection between privacy and discovery. Finally, this article lays out the mechanisms by which privacy protection can serve as an additional guide for defining the scope of civil discovery, particularly through examining privacy burdens as a factor in the proportionality test.


Download the article from SSRN at the link.

January 19, 2016 | Permalink

Appellate Court: Terrorism Act 2000, Section 7, Violates ECHR, Article 10

A British Court of Appeals has ruled that the Terrorism Act 2000, Section 7, violates Article 10 of the European Convention on Human Rights (freedom of expression). Said the court, "In the end, the incompatibility issue has been narrowly refined to the question of whether...the Schedule 7 stop power, if used in respect of journalistic information or material, is incompatible with article 10 in that it is not "prescribed by law" as required by article 10(2). "

The ruling came in the case of David Miranda, who was detained by police at Heathrow Airport in 2013. They subsequently examined his laptop, which contained encrypted files prepared by journalist Glenn Greenwald, who had been in contact with Edward Snowden. The UK government argued that the files contained information that was vital to national security. Mr. Miranda and the Guardian, which paid for his trip, maintained that the police examination of the files violated press freedom.  Mr. Miranda tweeted that the ruling shows that "Journalism isn't terrorism."

Read the ruling here.

Read the European Convention on Human Rights, Article 10, here.

January 19, 2016 | Permalink

Sunday, January 17, 2016

Garry Wills On "Spotlight"

In the New York Review of Books, Garry Wills on the film "Spotlight," reporters, and journalism's duty to society. There are several aspects to this story of child abuse, as Mr. Wills notes, and identifying heroes in the newsroom is more difficult than one might think.

January 17, 2016 | Permalink

Thursday, January 14, 2016

McIntyre On Implementing Information Privacy Rights In Ireland

T. J. McIntyre, UCD Sutherland School of Law, has published Implementing Information Privacy Rights in Ireland in International Human Rights: Perspectives From Ireland (Dublin: Bloomsbury, 2015). Here is the abstract.

This chapter examines the reception of international human rights norms on privacy into Irish law. It looks at the interaction between the domestic constitutional right to privacy and privacy rights under the European Convention on Human Rights and the Charter of Fundamental Rights and identifies factors which have led to international norms having limited influence in the Irish legislature and courts. It discusses in particular the way in which surveillance practices have been concealed from public view - by using surveillance for intelligence rather than evidential purposes the state has succeeded in avoiding scrutiny of a number of practices of dubious legality and has evaded the application of ECHR norms. The chapter then assesses recent developments - including the growth of Ireland as a technology industry hub and the influence of cases such as Schrems and Digital Rights Ireland - which are increasingly making Ireland a key jurisdiction in debates over surveillance and access to user data. It also assesses the growing role of the Charter of Fundamental Rights in this area, examining the ways in which it expands on the ECHR right to privacy and the tactical and strategic advantages it gives to litigants.

Download the essay from SSRN at the link.

January 14, 2016 | Permalink