Debate | Stephen v Seán Sherlock on SOPA

 The following are key excerpts from last night’s debate on the so-called Irish SOPA legislation, involving junior minister Seán Sherlock and Stephen Donnelly. The full transcript is here.

Sean Sherlock:

At this point, I will address the points submitted by the Technical Group in regard to the statutory instrument.  I will briefly give my analysis of them.  There is not a great deal of difference between the two statutory instruments.  I respect the point made.

We are not setting out a new policy framework but clarifying legislation through an amendment to the copyright Act.  We are going back to the position prior to the EMI v. UPC case where the right to seek an injunction by a copyright holder was there.

I note the Technical Group’s alternative clauses propose the statutory instrument be of two-year duration.  We have to monitor events, however, in the intervening two years and move quickly if essential balances are not maintained.  That would be impeded by a two-year clause.

On the Technical Group’s paragraph c, my proposed statutory instrument already includes a provision that the courts will have due regard to the rights of any person affected by virtue of the grant of any such injunction and the court will give such direction, including where appropriate a direction requiring a person to be notified of the application.  This covers the Technical Group’s point and to our mind it would be the action of a prudent judge.

On paragraph d, the remedy of damages will not be available against an intermediary provided it abides by the e-commerce directive.  Again, the e-commerce directive has certain rights which protect the business.  Given the wide variety of circumstances that may prevail, it is felt the best approach is to have the matter dealt with case by case through a judicial process which must balance all the rights involved.  Protections are already in place under European law.  The European Court of Justice requires all remedies must be proportionate while the right to freedom of expression and to conduct a business must be balanced with the right to intellectual property in considering the granting of an injunction.  The Charter of Fundamental Rights provides in law for the protection of personal data, freedom of expression and information, freedom to conduct a business, the right to property and consumer protection.

On paragraph e, one cannot predict future circumstances.  That is why we again feel the best approach is to deal with the matter case by case through the judicial process.  Many rights are involved in this paragraph such as the right to copyright and to intellectual property in general.  The first matter to be considered is to establish if there is an infringement.  If lawful content is also included, the right of making available by the owner of the lawful content has to be considered.  The rights of the citizen, consumer and end-user in freedom of expression and freedom to receive or impart information must also be taken into account.  The right to data protection must come into the mix on the point made by the Technical Group.  The right of the Internet service provider, ISP, to conduct a business and all that it entails must also be upheld.

For the purposes of clarity, the Technical Group submitted an alternative statutory instrument, and I am addressing specific points in it.

On paragraphs f and g of the Technical Group’s submission concerning injunctions, these matters are already within the discretion of the court.  EU law has held any measures must be fair and proportionate and not excessively costly.  Yet again, given the varying circumstances that could arise, we feel a case-by-case analysis and the balancing of rights and consideration of all matters by judicial process is the proper forum for such decisions.

On Deputy Keating’s point about publicising this, I want to reiterate we had an open consultation on it.  I stated on the record I was available to meet anybody.  I have sent out three communications to all Deputies, across all parties, and Senators on this issue so far.  I have engaged with the media in as open a fashion as possible.  I am willing to talk to people and am making myself available to the Internet community to talk to it on this.

On Deputy Buttimer’s point about the implications of this amendment, I reiterate this is about balancing the rights of Internet users, Internet businesses and the copyright holder.  The ISPs, as I outlined earlier, are the mere conduit, the mechanism through which information flows.  They act responsibly, as do individual websites, and in the majority of cases do not overtly seek to facilitate copyright theft.  A solution to the problem might be voluntary agreements in place between copyright holders and individual ISPs, hosters and caching companies.

I do not believe we are doing the bidding of big business because there are as many – a multitude of – small Irish copyright holders on this island who have the right to certain protections which are not superior to the other rights I have outlined prior to this.

Stephen Donnelly:

I thank the Minister of State for addressing the various clauses in the statutory instrument.  I want to focus on three issues in response, the first of which is cost.  The Minister of State stated repeatedly the protections exist in European law.  There is a sense this statutory instrument is somewhat vague but the Minister of State has stressed judges will look to European law.  He gave the example of www.boards.ie, which employs two people full time on take-down notices and takes this stuff very seriously.  The view of the team of www.boards.ie is this will force legal costs upon them which will probably force them to shut down.  It is the biggest online community in Ireland, with over 2 million unique Irish users.  Every time they have to go to court they believe it will cost them about €35,000.  They can do that a very small number of times and most of their smaller equivalents cannot do that at all.

Our proposed additional clauses to the statutory instrument would bring the European protections into Irish law.  Rather than a judge ruling on the basis of Irish law, and www.boards.ie possibly being informed an injunction had been taken and some ISPs were blocking access to www.boards.ie, and www.boards.ie having to spend upwards of €35,000 getting a new ruling citing European law, through the clauses in the statutory instrument we are bringing that into Irish law.  Therefore, by the Minister’s own logic, nothing has changed in terms of the additional clauses we have added, but they would give an awful lot of comfort to the people to whom we have spoken.

The Internet Service Providers Association of Ireland, a reputable group which includes Google, said the wording of the statutory instrument as published was “vague and overly broad.  It creates further business uncertainty for those running or considering establishing Internet services in Ireland”.  That is a fairly strong position.

We accept the Minister of State is not doing the bidding of big business.  However, it is interesting to note the owners of copyright have stated publically they are very happy with the proposed statutory instrument while the intermediaries have stated publically they are deeply unhappy, and the largest Irish online community has stated that this will force it out of business.

In terms of finding balance, if one side is delighted with it and the other side is horrified by it, and they are all legitimate, it suggests the current statutory instrument does not have that balance.  We have added the additional clauses to strike that balance.  I encourage the Minister to examine them and commit to the House this evening that he will give a detailed response and provide time and a timeframe to debate the clauses for the reasons I have laid out.

… The key question is whether the Minister of State is going to sign the statutory instrument.

Sean Sherlock:

In regard to signing the statutory instrument, I have addressed the issues raised by the Technical Group.  I have already stated that it is our intention to proceed with the statutory instrument.  The State has been exposed on this issue, which has been ongoing since November 2010, and what we are doing is a proportionate response.  We will not infringe on anybody’s right to conduct a business or to free expression through the Internet…

In regard to the alternative statutory instrument proposed by T.J. McIntyre, I have debated the issue with him in public media and I am not averse to engaging with the digital rights community with a view to hammering out a strategy.  However, we have to implement the statutory implement and we are doing so on foot of advice from two Attorneys General.  I have to take account of the sound advice given by an Attorney General.  This legislative measure is being introduced on foot of the legal advice my Department has obtained.  The Office of the Attorney General was asked by my Department and the Department of Communications, Energy and Natural Resources for advice on the implications of the High Court judgment and it has advised that the obligation set out in the directive is clear and unambiguous.  Rights holders must be given a mechanism to apply for an injunction against intermediaries where their intellectual property rights are being breached.  The Attorney General’s office advised separately that the prudent course was to introduce a regulation to ensure compliance.  That is merely what we are doing.

Stephen Donnelly:

Will the Minister of State consider new clauses?

Sean Sherlock:

I thank all who contributed to this debate and reassure citizens that this State and successive governments have invested heavily in new technologies related to the web and communications.

The full transcript is here.

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  • Anonymous

    Fair play to you Stephen. You seem to grasp the reality of things. Unlike Sean. To me, you’ve made a very clear and concise argument which has fallen on deaf ears. Whether those ears have the ability to decipher this information, filter it, or block it out completely is up in the air.

    I have no rational opinion of Sean’s actions. They to me are of a man avoiding the question for a strange reason. He does not engage in the conversation, he seems to merely read aloud some pre-scribbled drivel and completely ignore any points put to him.

    In years to come, if this statutory instrument is passed, Sean will have a lot to answer for.