EFI You Say So

Well now. Usually Tuppenceworth’s denizens take an Olympian view of the rest of the Internet. They may make use of it for research, but they rarely comment of the hot topic of the moment. Speaking for myself, it may be something to do with other people getting there first with all the good ideas.

But I’m going to consciously break this habit by mentioning the discussions on setting up a digital rights organisation which would lobby for, advise on and promote sensible electronic policies. A magnificent example of how effective an organisation like this was when the Irish Citizens for Trustworthy Evoting took on the Civil Service spokesman Minister Martin Cullen and pushed electronic voting machines out of the door and into a number of properties rented from Returning Officers by the Returning Officers around the country. And on the lobbying side, IrelandOffline has been doing Trojan work offering an alternative to eircom’s vision of internet use for years now. And their spokespeople are always more credible than the eircom bods wheeled out to spout guff.

Here’s the Freestater blog’s round-up of talk about it. And here’s the link to the boards.ie forum on Digital Rights.

Lost of people saying things there, and as usual they’ve got to the good stuff before me. So for my contribution, I’ll just say that we’re not the only nation wondering why they can’t have an organisation as powerful as the American EFF to make noise about the things that matter to them. Danny O’Brien, who now works for the EFF and writes a column for the Irish Times on Friday (along with Karlin Lillington’s column the joint highlight of the Friday Business Supplement) as well as for the Guardian recently chaired a meeting in the UK where they asked themselves “Where’s the British EFF?”

You can hear what happened at that meeting, if you’ve the wherewithal, by downloading an MP3 of about an hour long that’s available from the conference’s site.

Amongst other things, Cory Doctorow of the EFF describes that organisation as an ‘Impact Litigator’. They take the very tidy cases that turn on the specific points of law that the EFF want a judgement on and drive them as far as they need to establish their constitutionality.
Demonstrating a slightly shaky grasp of pan-European judicial systems, as do we all when forced to think of them at all, he suggested that the incorporation of the European Convention on Human Rights into UK law gave the Brits a chance to attempt to rely on something akin to a constitution, with an appeal to the Court of Human Rights in The Hague (known as the ECHR to its Mammy).

Alas for the constitutionless British, the ECHR can’t strike down a law they don’t like. They can only apply moral pressure by finding a practice or law to be in contravention of the European Convention on Human Rights.

The European Court of Justice can really bite, of course. But it doesn’t deal, as matters stand, with matters of Human Rights directly. It only decides whether matters are in contravention with the EU Treaties. So really, the EFF isn’t a model that can be directly applied to the UK.

Nor can it be applied to Ireland. Though we do actually have a Constitution, which puts us at least a step ahead. What we don’t have is, well anything else we’d need. We don’t have the volume of cases that would let an Irish Impact Litigator choose the one case that hangs just on the question they want litigated. And we don’t have a system that welcomes litigation just to find out if a law can be struck down. You need locus standi- a personal stake- to take a case. Unless you’re the President of Ireland. Then you can forward Acts of the Oireachtas straight to the Supreme Court to have their Constitutionality definitively pronounced on.

The rest of us have to muddle along.

So the question isn’t really ‘Where’s the Irish EFF?’ because we can’t have an EFF here. Rather it should be ‘What would an Irish Digital Rights organisation do?’

Though it isn’t as snappy.


  • Locus standi is a very tough concept, and I don’t see that this would necessarily be a bar in all circumstances. There is plenty of complex precedent on the issue. The concept of locus standi is by no means unique to Ireland.

    I don’t know of any legal system in the world that ‘welcomes litigation just to find out if a law can be struck down’.

    The issue with constitutionality and ECHR compliance often relates to administrative practice rather than to actual law. It is generally the case that an action or a practice that is unconstitutional rather than an actual piece of law. The same law may be implemented in a constitutional or an unconstitutional way. The presidential perogative to refer legislation is rarely used because a declaration of constitutionality might give the legislation undesirable immunity from challenge later.

    There were at least two instances in the last five years where litigation of this type would have been a possibility relating to ‘digital rights’ issues in the last three years. One was electronic voting; another was providing of ISP records in relation to a civil case (where the defendants were completely unrepresented in court).

    The main barrier to these types of actions tends to be money, rather than any serious legal impediment. Litigation in Ireland is very risky and very expensive. And in international terms, it could be argued that the stakes are relatively low.

  • Fergal says:

    You’d probably get locus standi as a concerned party, merely by being a citizen. whether an EFI could get standing is a different question. Limited companies have been used as vehicles for judicial review (which is what we’d probably be looking at here) in planning matters, but the capacity this tactic affords for escaping the costs of a failed JR case has been a cause of concern to the courts (witness the Lancefort saga). Where we seem to be moving to is a position whereby an individual citizen has locus standi, but runs the risk of being bankrupted by a vengeful defendant if he loses, whereas a company has no costs worries, but doesn’t get locus standi, as it’s not directly affected.

  • Well, I don’t think the locus standi is the issue there. The heart of the issue is that this is just using a limited company to blatantly avoid liability for debts. There is just no way the courts or the ODCE people are going to allow the veil of limited liability to be used in this way. The judge will most likely make the plaintiff make a lodgement towards costs before the action begins.

    Besides, even if you could do this, you’d still be faced with finding a way to pay your own lawyers.

  • Fergal says:

    Quite so. The private-limited-company-as-vehicle-for-litigation ruse was a short-lived one, and seems to be on its way out post-Lancefort/Malahide. As for one’s own legal costs, I suspect that, absent a wealthy benefactor, you’d be seeking someone to do the work pro-bono. Depending on the issue, this might not be as hard as it sounds. In practice though, I don’t think an EFI could make litigation it’s core activity. Lobbying and awareness-raising seem to be the more logical route to take.

  • EWI says:

    I agree with Fergal’s last point. While an EFI could make certain legal issues (such as assisting ISPs) an area of activity, the main value is in organising, lobbying and media liaison.

  • celtictigger says:

    Awareness building is the key approach. I saw Fergal a while ago at an Irish Computer Society lecture on legal issues in Information Quality. Quite a number of people at the lecture who thought that liability for duff data was only a concern for companies affected by Sarbanes-Oxley were choking on their finger-finger food by the end.

    Litigation is the difficult one. As Fergal pointed out in the Information Quality domain – being found liable for damages arising from defective data quality is terrible, but being in court in the first place is not much better. A lot of cases will probably be settled out of court to avoid creating precedents.

    I wonder what will happen with the people who are challenging the IRMA letters? Will any of those cases see the inside of a court room?

  • […] The sharp-eyed reader, a class tuppenceworth aspires to cater for, will have noted that I broke with tradition recently and actually contributed to a discussion going on amongst Irish bloggers about forming a group to promote digital civil rights in Ireland. There it is now. Now, since then, happenings have happened and occurrences have occurred. I accept that this is the normal way of things but it’s still all new to me. […]

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