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Transfer of Personal Data- the Max Schrems and Facebook case

Privacy Rights Campaigner Max Schrems claims the transfer of his personal data by Facebook from Europe to its US parent company is unlawful and in breach of his right to privacy under article 7 and 8 of the EU Charter of Fundamental Rights. Individuals in the European Union have a specific right to privacy under European law. Individuals in the US do not have the same protections. In the US personal data is subject to mass State surveillance which is a breach of European citizen’s rights. The Irish Data Protection Commissioner refused to investigate Mr. Schrems complaint, this was overturned by Court Order and the Data Protection Commissioner was directed to investigate Mr. Schrems’s complaint.

 

The complaint was then investigated by the Irish Data Protection Commissioner. A draft decision on this complaint was then issued by the Irish Data Protection Commissioner, who then issued High Court proceedings seeking to refer a number of questions to the European Court. The key question raised is whether standard contractual clauses approved by the EC to be used by parties when they are arranging for the transfer of personal data of individuals to other countries outside the EU provide sufficient protection for EU citizens.

 

Ten parties applied to be joined as amici curiae (parties who have an interest in the proceedings) to assist the High Court in relation to this case. The High Court ordered that the USA Business Software Alliance, Digital Europe and the Electronic Privacy Information Centre be joined as amici curiae on the basis that this will have significant economic and commercial consequences for companies and individuals. The USA BSA were joined as restrictions on transfer of data would have considerable adverse effects on US commerce. Business Software Alliance is a not for profit international trade association of global technology providers. EPIC is a public interest, not for profit organisation with expertise in privacy, freedom of information, and government surveillance and has appeared frequently in the US as amici curiae and before the European Court of Human Rights. EPIC is a member of the advisory panel of Mr. Schrems. Digital Europe is the principal representative body for Europe for the Digital Technology Industry and is a not for profit association. The US Government were also represented in the case.

 

The case was heard in the High Court in Dublin in March 2017 before Ms. Justice Costello for a number of weeks. Judgment has been reserved and will issue shortly.

 

If you have any queries or comments in relation to this article, please contact Davnet O’Driscoll at Davnet@amoryssolicitors.com

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The Monkey Selfie Lawsuit in the US – how would the High Court of Ireland decide a similar case?

“Monkey Sees, Monkey Sues”

Last month a federal court* in San Fransisco, California held that a macaque monkey who took several selfies could not be declared the owner of the images’ copyright either under Unites States legislation or its Constitution.

The case

The case** arose out of a dispute between the animal rights organisation the People for Ethical Treatment for Animals (PETA) and wildlife photographer David Slater whose camera the monkey used to take the images.

In 2011, Slater went to a nature reserve on Sulawesi Island, Indonesia to study a family of macaque monkeys.   There, Slater set up his camera on a tripod and deliberately left the remote trigger for the camera accessible to the macaque who subsequently took two famous monkey selfies. The selfies were later published in a book by Slater’s publishing company, Blurb.

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PETA issued proceedings on behalf of the monkey against Slater and Blurb seeking a declaration from the US federal court that the macaque monkey was the owner of the selfie and an order granting the assignment of the copyright in the images to the monkey.  The organisation also sought the equivalent of an order appointing it as trustee of the income generated by the images so that it could administer same for the benefit of all of the macaque monkeys on the reserve on the Indonesian island.

 

The photographer’s copyright not at issue

Slater’s entitlement to the copyright in the images was not at issue in this instance.   The US federal court had to decide as a preliminary issue (i.e. before a hearing of the full trial) whether an animal could own copyright in an image in the United States.  If the court held in the affirmative on that question (which it did not), the case could have then proceeded to a full hearing of the issues between the parties.

 

Decision in the United States

Unsurprisingly the US federal judge held that US legislation and its Constitution did not extend copyright protection to animals and dismissed the case accordingly.

 

In Ireland

Unremarkably the monkey and/or PETA are likely to be unsuccessful in any attempt by PETA to establish that the monkey owns the copyright in the images in Ireland.

The law of copyright in this jurisdiction is governed by the Copyright and Related Rights Act 2000 (“the Act”).  Section 23 of the Act states that an “author” of a work shall be the owner of copyright therein and section 21 of the Act states that the “author” means “person” who creates the work which in the case of a photograph means a photographer (i.e. the monkey in this case).  Whilst the Act does not specifically state that a person means an individual or a body corporate section 18 (c) of the Interpretation Act 2005 does so, unfortunately, the monkey and/or PETA on its behalf would not be successful in an argument under the Act.

Similarly an argument that copyright protection should be extended to animals on the basis that such a protection is an unenumerated right guaranteed by our Constitution is likely to fail as the relevant article (40.3) refers to “personal rights” of “citizens” and an animal is not a citizen.

 

But what about the photographer, would he own copyright in the image in Ireland?

If a court accepted a broader definition of ‘photographer’ to include Slater (as he purposefully left the camera with the monkeys and orchestrated the shot) Slater could have difficulty in proving that the image or work was “original”.

In order for copyright to subsist in a work in Ireland and in member states of the European Union same must be ‘original’ (section 17 (2) (a) of the Act and EU Directive 2001/29/EC) and a work is considered original if it is the result of the author’s own intellectual creation***.

Whilst the answer to this question could be the subject of an article itself, in brief, it is submitted that Slater would be in a weak position trying to assert copyright in the monkey selfies as leaving a camera amongst a family of monkeys would not be a sufficient expression of his intellect to render the images ‘original’.  If Slater used particular photographic techniques or computer software to manipulate the images in some way, it is submitted that he would be in a better position to prove originality in them and that he owned the copyright.

This case highlights the legal difficulties in establishing ownership of copyright in an image and how difficult it is for a monkey to make it in the media industry.  Great story.

 

Deirdre Farrell, solicitor AITI Chartered Tax adviser, Amorys Solicitors, Suite 10, The Mall, Beacon Court, Sandyford, Dublin 18 deirdre@amoryssolicitors.com, tel 01 213 59 40

© February 2016

 

NB: In publishing the above image we are availing of the ‘fair dealing’ exemption from infringement set out in section 51 of the Act.

 

 


* A federal court in the United States, is a court that has jurisdiction to decide on claims that fall to be determined on the interpretation of the laws, treaties or Constitution of the United States as opposed to internal State laws.

** US Distrcit Court, Northern District of California, San Fransisco Division, case reference 15-cv-4324-WHO

*** This is accepted as the harmonised definition of originality in the European Union -see Infopaq International A/S –v- Danske Dagblades Forening C5-08 Court of Justice of the European Union (4th Chamber)

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Paternity Leave Rights for Fathers Commence 1st September 2016

The Paternity Leave and Benefit Act 2016 gives 2 weeks paternity leave to fathers or the spouse, civil partner or cohabitee of children born on or after 1 September 2016, or to a spouse, civil partner, cohabitee, of an adopting mother or sole male adopter adopting a child on or after 1st September 2016.

  • Paternity leave can be taken from the date of birth or adoption of the child at any time prior to the expiry of 26 weeks after the date of birth or adoption.
  • Notification to the Employer of the employee or contractor’s paternity leave should be given as soon as reasonably practicable, but no later than 4 weeks before the expected week of confinement of the mother or the adoption placement.
  • Paternity leave is given in a single block of 2 weeks. This is to enable the parent to provide or assist in caring for the child and to support the other parent.
  • Only one parent is entitled to paternity leave in relation to the birth or adoption of a child even where there is a multiple birth or adoption of 2 or more children at the same time.
  • If an employer has reasonable grounds for believing an employee on paternity leave is not using the paternity leave for caring or support for the child, the employer may terminate the leave. The employer can serve a notice containing the grounds for termination of leave requiring the employee to return to work.
  • Records of paternity leave dates must be kept for a period of 8 years or an employer, risks being found guilty of an offence, and a fine of up to €4,000.
  • While on paternity leave the employee is protected from unfair dismissal, penalisation, including selection for redundancy, unfavourable changes in terms or conditions or employment as a result of paternity leave. The employee can make a complaint to the Workplace Relations Commission of a breach of the Act.
  • Employees or self-employed contractors are entitled to paternity benefit where the Claimant has qualifying contributions.
  • Employers should update their Contracts of Employment and Employee Handbooks to incorporate this change.

     

    This is a summary of recent changes and specific legal advice should be obtained. If you have any comments or queries, please contact Davnet@amoryssolicitors.com

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Children and Family Relationships Act 2015

This Act has overhauled family law to update provisions in relation to guardianship, custody, and access to children, and in relation to adoption, IVF and other types of assisted human reproduction. The Act does not deal with surrogacy.

The Act will be commenced in stages in the coming months. A number of changes which will be put in place are set out below:

  • A father is a guardian of a child where he is a parent who is married or in a civil partnership. Where an unmarried father is a parent and has been living with the mother for a minimum of 12 months (after the Act comes into operation), including 3 consecutive months after the child’s birth, he willautomatically be a guardian of the child. An unmarried father can be appointed a guardian by a Court or where the mother agrees to the appointment of the father as a guardian and a statutory declaration is signed to this effect, or where he has rights and responsibilities equivalent to guardianship under the law of another State. This is a significant development as there was previously no automatic right of guardianship for unmarried fathers in Ireland.
  • A father of a child includes a male adopter but does not include an unmarried father who is not a guardian of a child under the Guardianship of Infants Act 1964.
  • The best interests of the child are paramount in relation to guardianship, access or custody of a child. A Court will now take into account the views of the child, and has powers to appoint an expert to inform the Court of the child’s views, on behalf of the child.
  • For the first time a Court can appoint a guardian who is not a parent who has been living with a parent of the child for more than 3 years and shared responsibility of the child day to day for more than two years. The Court can also appoint a person a guardian who is providing the child’s day to day care for more than 12 months continuously, where the child has no parent or guardian who is willing or able to be a guardian. This type of guardian may have rights which are limited by Court order.
  • A temporary guardian can be appointed for a child if a guardian is incapable of acting due to illness or injury. Guardianship continues until the guardian dies, child reaches 18 or marries. Guardians can be removed by a Court.
  • Relatives seeking access to a child no longer have to seek leave to obtain access from a Court.
  • Relatives and persons in loco parentis can apply for custody of a child.
  • A parent or guardian who has been unreasonably denied access or custody by another parent may apply to court for an Enforcement Order which is a “fast-track” procedure to make sure the parties comply with the Court Orders in place and can provide for the expenses of the party who has been unreasonably denied access or custody.

This is a summary of recent changes to guardianship, custody and access under the Children and Family Relationships Act 2015 which will shortly be in place.

If you would like to discuss any aspect of this further, please contact Davnet@amoryssolicitors.com.

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Children and Family Relationships Act 2015

This Act has overhauled family law to update provisions in relation to guardianship, custody, and access to children, and in relation to adoption, IVF and other types of assisted human reproduction. The Act does not deal with surrogacy.

The Act will be commenced in stages in the coming months. A number of changes which will be put in place are set out below:

  • A father is a guardian of a child where he is a parent who is married or in a civil partnership. Where an unmarried father is a parent and has been living with the mother for a minimum of 12 months (after the Act comes into operation), including 3 consecutive months after the child’s birth, he will automatically be a guardian of the child. An unmarried father can be appointed a guardian by a Court or where the mother agrees to the appointment of the father as a guardian and a statutory declaration is signed to this effect, or where he has rights and responsibilities equivalent to guardianship under the law of another State. This is a significant development as there was previously no automatic right of guardianship for unmarried fathers in Ireland.
  • A father of a child includes a male adopter but does not include an unmarried father who is not a guardian of a child under the Guardianship of Infants Act 1964.
  • The best interests of the child are paramount in relation to guardianship, access or custody of a child. A Court will now take into account the views of the child, and has powers to appoint an expert to inform the Court of the child’s views, on behalf of the child.
  • For the first time a Court can appoint a guardian who is not a parent who has been living with a parent of the child for more than 3 years and shared responsibility of the child day to day for more than two years. The Court can also appoint a person a guardian who is providing the child’s day to day care for more than 12 months continuously, where the child has no parent or guardian who is willing or able to be a guardian. This type of guardian may have rights which are limited by Court order.
  • A temporary guardian can be appointed for a child if a guardian is incapable of acting due to illness or injury. Guardianship continues until the guardian dies, child reaches 18 or marries. Guardians can be removed by a Court.
  • Relatives seeking access to a child no longer have to seek leave to obtain access from a Court.
  • Relatives and persons in loco parentis can apply for custody of a child.
  • A parent or guardian who has been unreasonably denied access or custody by another parent may apply to court for an Enforcement Order which is a “fast-track” procedure to make sure the parties comply with the Court Orders in place and can provide for the expenses of the party who has been unreasonably denied access or custody.

This is a summary of recent changes to guardianship, custody and access under the Children and Family Relationships Act 2015 which will shortly be in place.

If you would like to discuss any aspect of this further, please contact Davnet@amoryssolicitors.com.

Transgender Recognition in Ireland

“A journey of a thousand miles must begin with a single step” 

Lao Tzu, Chinese Philosopher (604BC – 531BC)

Gender reassignment is not yet recognised in Ireland but is recognised in every other member state of the European Union.  This has lead to a somewhat bizarre situation where the Irish authorities will recognise the acquired gender of a transgender EU national but not that of a transgender Irish national.

In 2011 the Irish Registrar of Births, Deaths and Marriages registered a civil partnership between a transgender woman EU national and her female partner.  The reason the Registrar allowed the registration of this civil partnership was because under EU law, a member state (including Ireland) is obliged to accept an applicant’s nationality as determined by his/her state of origin.

At the time of writing it has been in excess of twenty years since Dr Lydia Foy, a transgender woman (who is also a qualified dentist) first sought legal recognition of her acquired gender as a female from the then Registrar of Births in 1993.  In 2007 the High Court made a declaration in the case of Foy -v- An t-Ard Chláraitheoir & Ors that the lack of legal recognition of an individual’s acquired gender breaches Ireland’s obligations under the European Convention on Human rights Act 2003.

Despite this High Court declaration nearly six years ago no draft legislation has been published to date.  In 2011 shortly after taking office, the Minister for Social Protection Joan Burton assured interested parties that the heads of a bill would be published in 2012 however there is still no sign of a bill.  It has been suggested by commentators that this delay is because further research into the impact of any proposed legislation on the institution of marriage and the family in Ireland is required.

In March of this year (2013) it emerged that Dr Foy has issued new proceedings in the High Court against the Minister for Social Protection and the State seeking either an order compelling the Minister and the State to publish legislation on foot of the 2007 High Court declaration or, in the alternative, a declaration that the European Convention on Human Rights Act 2003 is void and has no practical effect in Ireland.

If the Court is forced to make a decision in this case it will be interesting to see how the judgment respects the doctrine of the separation of the three powers of the State; the legislative, executive and judicial.  The judicial arm of the State does not have the power to initiate legislation as that is the function of the legislative arm – the Dail and the Seanad.  However the judiciary is responsible for upholding the fundamental rights conferred on citizens by the Constitution (including one’s right to marry, equality, dignity and one’s identity) and ensuring that these rights have practical effect.  However given the backlog in the courts system we may have to wait for some considerable time before a decision is made.

Dr Foy’s case is unlikely to be heard for at least 2 years and maybe longer and she will inevitably encounter many more legal obstacles on route to a hearing in the High Court.  One must wonder how many steps remain in Dr Foy’s thousand mile journey.

 

Update

Amorys Solicitors are delighted to hear that Dr Foy settled her long drawn out case against the State last Tuesday, 28th October 2014 on the basis of the State telling the Court it was the “expressed intention” of the Government to secure the enactment into law of the Gender Recognition Bill 2014, which would enable Dr Foy to get the certificate.

 

Deirdre Farrell, Solicitor and AITI Chartered Tax Adviser (CTA), Amorys, Suite 10, The Mall, Beacon Court, Sandyford, Dublin 18, Tel: 01 213 59 40

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HOMEOWNERS THREATENED WITH LEGAL PROCEEDINGS FOR DEVELOPER’S FAILURE TO PAY FINANCIAL CONTRIBUTIONS

Wicklow County Council (WCC) is pursuing 24 homeowners at Meadow Brook estate in Avoca for unpaid financial contributions required by the planning permission that approved the estate development. A financial contribution is a condition in a planning permission that requires the payment of a sum calculated pursuant to that local authority’s Development Contribution Scheme.  The payment is designed to compensate the local authority for the benefit that a proposed development would gain from using the roads, services and sewerage facilities within that local authority area.

Financial contributions imposed as a condition of a planning permission are generally required to be paid prior to the commencement of construction work.  However agreements can be reached between the developer and the planning authorities for phased payment of the financial contributions but they generally include a considerable upfront payment. In the past such agreements had the effect of enabling the developer to sell properties without having to discharge the full amount of the financial contributions. Serious problems have now arisen for local authorities where developers have become insolvent leaving the issue of unpaid financial contributions outstanding.

Failure to pay a financial contribution means that the planning permission has not been complied with.  Failure to comply with a condition in a planning permission affords a local authority grounds to serve an enforcement notice which in some cases could lead to the demolition of a property.  However there is no express legal provision which would entitle a local authority to recover unpaid financial contributions from the developer’s successor in title.  Planning legislation is unclear as to where the ultimate liability lies: is it on the property or on the developer to whom the planning permission was granted?

WCC is of the opinion that unpaid planning contributions are a charge on the property itself and not on the developer and has issued letters of demand to a number of the homeowners of the Meadow Brook estate for a portion of the unpaid financial contribution. The total amount claimed by WCC is just over €65,000.00 in total.

The issue of unpaid financial contributions is a matter for each local authority. Financial contributions are a source of significant funding for local authorities and given that there are reportedly €300 million in unpaid financial contributions in respect of planning permissions nationwide it is likely that WCC will not be the only local authority adopting this approach in such circumstances.

Dublin City Council has however recently stated that its policy is not to pursue householders.  Both Dun Laoghaire Rathdown and Fingal County Council are reported to have stated that they were unable to be definitive about their approaches to the issue. However whether or not local authorities adopt a policy of pursuing home and property owners the problem is likely to rear its head on a sale or remortgage when a purchaser or his solicitor will immediately seek clarity from the local authority concerned.

Given the history of insolvent developers in the Sandyford and surrounding areas local home and property owners may not be immune to this problem.

The precise legal basis for the actions of WCC in issuing these letters of demand to the homeowners of the Meadow Brook estate is unclear and may soon become the subject of a test case.  The matter may well have broader implications for all property owners both residential and commercial in circumstances where financial contributions remain unpaid.

The outcome of this move by WCC will be awaited with great interest by property owners, investors, lawyers, banks and insolvency practitioners.

 

12/02/13

Deirdre Farrell, Solicitor and AITI Chartered Tax Adviser, Amorys Solicitors, Suite 10, The Mall, Beacon Court, Sandyford, Dublin 18. Tel: 01- 213 59 40