Two data retention cases pose questions for three Ministers for Justice

Two cases have now been brought in Ireland seeking to take advantage of the Digital Rights Ireland decision from the European Court of Justice in order to exclude evidence in criminal trials. First, a case stated in the prosecution of a detective garda alleged to have given false information to GSOC; second, a challenge brought by convicted murderer Graham Dwyer - commenced in January but made public only on his conviction last week.

Given how central internet and phone evidence is to many prosecutions, the only surprise is that it's taken this long for these challenges to be brought and no doubt more will come. Unfortunately it is possible that at least some convictions will be overturned as a result - and the blame for this will lie squarely with the Department of Justice and successive ministers.

Ministers Dermot Ahern, Alan Shatter and Frances Fitzgerald in particular have questions to answer.

Dermot Ahern knew in 2011 that data retention was on very shaky ground. By then data retention laws had been struck down in Bulgaria (2008), Romania (2009) and Germany (2010) - and the Irish challenge was pending before the High Court which had decided that the case raised "important constitutional questions". At this point the Irish law should have been reformed to provide for data preservation and include adequate safeguards identified by those cases, such as a requirement for a judge to approve access to data. Instead the law adopted in 2011 was equally flawed.

Alan Shatter and Frances Fitzgerald are equally if not more at fault. It was clear from the Advocate General's opinion in December 2013 that the Data Retention Directive would be struck down. But instead of replacing the 2011 law implementing the Directive both ministers adopted the ostrich position. There has been nothing but radio silence from the Minister for Justice since the Data Retention Directive was invalidated just under a year ago. It may be that she hopes by ignoring the problem it will go away. But by doing so she is only ensuring that many more prosecutions and convictions will be put at risk. As I previously predicted, "by continuing to keep its head in the sand the State is only storing up problems for the future".

Mixed internet messages from the Indian Supreme Court

The Indian Supreme Court today gave a landmark decision on the Information Technology Act 2000. Most media coverage has focused on the fact that the court struck down section 66A - the offensive messages provision - finding that it was unconstitutionally vague and would have a chilling effect on freedom of expression. This is significant for the ongoing Irish debate on "cyberbullying". The Irish offence of sending offensive messages by telephone is extremely similar to the Indian s.66A offence and there have been calls to extend it to the internet. Today's judgment suggests that this would be unconstitutional. As the Indian Supreme Court stated:

[The English cases] illustrate how judicially trained minds would find a person guilty or  not guilty depending upon the Judge’s notion of what is “grossly offensive” or “menacing”.  In Collins’ case, both the Leicestershire Justices and two Judges of the Queen’s Bench would have acquitted Collins whereas the House of Lords convicted him.  Similarly, in the Chambers case, the Crown Court would have convicted Chambers whereas the Queen’s Bench acquitted him. If  judicially trained minds can come to diametrically opposite conclusions on the same set of facts it is obvious that expressions such as “grossly offensive” or  “menacing”  are  so  vague  that  there  is  no  manageable standard by which a person can be said to have committed an offence or not to have committed an offence. Quite obviously, a prospective offender of Section 66A and the authorities who are to  enforce  Section  66A  have  absolutely  no  manageable standard by which  to  book a  person for an offence under Section 66A.

There's been less attention to the court's disappointing findings upholding the section 69A government power to order the blocking of websites where "necessary or expedient so to do, in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of  any cognizable offence relating to above". According to the court, the procedural safeguards established around blocking were sufficient to protect freedom of expression, despite the fact that blocking is ordered by the government itself rather than an independent body:

It will be noticed that Section 69A unlike Section 66A is a narrowly drawn provision with several  safeguards. First  and foremost,  blocking can only be resorted to where the Central  Government is satisfied that it is necessary so to do. Secondly, such necessity is relatable only to  some of the subjects set out in Article 19(2). Thirdly, reasons have to be recorded in writing in such blocking order so that they may be assailed in a writ petition under Article 226 of the Constitution.

The  Rules  further  provide  for a  hearing  before  the Committee set up - which Committee then looks into whether or not it is necessary to block such information. It is only when the Committee finds that there is such a necessity that a blocking order is made. It is also clear from an examination of Rule 8 that it  is  not  merely  the intermediary  who  may  be  heard. If  the “person” i.e. the originator  is identified he is also to be heard before a blocking order is passed. Above all, it is only after these procedural safeguards are met  that blocking orders are made and in case there is a certified copy of a court order, only then can such blocking order also be made.

Still, it is heartening to see that the Indian Supreme Court apparently considered it essential that both the intermediary and also the "originator" (the person who posts material) should be given the chance to be heard before a blocking order is made. In too many national schemes the only notice - if any - is to the host or social network, not the user.