Journal of the Bar of Ireland • Volume 20 • Issue 4 • July 2015 New Rules for Unconstitutionally Obtained Evidence TheThe LawLaw ofof AdvertisingAdvertising inin IrelandIreland PatrickPatrick AmbroseAmbrose If you are an advertiser or a lawyer advising How this book will help you: advertisers, you’re not alone if you feel • Brings together all the complex law, regulations, case law and codes of practice challenged by the broad range of law and in one text, saving you time regulation that increasingly applies to • Contains the latest position of Irish and advertising in Ireland. This is especially true EU law and regulation as it relates to in relation to emerging technologies and the advertising, keeping you up to date with developments growing use of social media which present • Covers law and regulation as it applies complex privacy and data protection issues. to certain industries, such as financial services, pharmaceutical and alcohol, This practical new book is the first to bring together all the giving you the comprehensive information Irish and EU laws and regulations that affect advertising. It you need to make decisions will be essential reading for all companies that advertise in • Provides you with a one-stop source of Ireland (online or otherwise) and their advisers. information – the only Irish text on this subject Why you need The Law of Advertising in Ireland Advertising is subject to both the general law, such as consumer protection and defamation, and also to more specific regulation, depending on the nature of the goods or services being advertised. For example, there are specific restrictions on how alcohol and tobacco can be promoted. The wide variety of media used (television, print, text messages, online, mobile) means that many different regulations can apply. This book will help you assess whether an advertisement is fully compliant with the law, and will guide you through the laws and regulations – giving you the information you need to act with confidence. ISBN: 978 178043 8436 Pub: June 2015 Format: Hardback Price: €195 + €5.50 P&P Order your copy today Contact Jennifer Simpson on +353 (0) 1 637 3920 or email [email protected] Or buy online at www.bloomsburyprofessional.com/ie Editorial Correspondence to: Eilis Brennan BL The Editor Bar Review Law Library Four Courts Dublin 7 DX 813154 Telephone: 353-1-817 5505 Cover Illustration: Brian Gallagher T: 01 4973389 Fax: 353-1-872 0455 E: [email protected] W: www.bdgart.com E: [email protected] Typeset by Gough Typesetting Services, Dublin [email protected] T: 01 8727305 Editor: Eilis Brennan BL Editorial Board: Gerry Durcan SC Mary O’Toole SC Conor Dignam SC Brian Kennedy SC Patrick Dillon Malone SC Mark O’Connell BL Volume 20, Issue 4, July 2015, ISSN 1339-3426 Paul A. McDermott BL Tom O’Malley BL Patrick Leonard BL Paul McCarthy BL Contents Des Mulhere Consultant Editors: Patrick MacEntee SC Eoghan Fitzsimons SC 74 Principles of Irish Constitutional Equality Law: Recent Pat Hanratty SC Developments James O’Reilly SC DR. ELAINE DEWHURST The Bar Review is published by Round Hall in association with 78 Corporal punishment in Ireland and the European Committee The Bar Council of Ireland. on Social Rights For all subscription queries contact: R EL OUSINS D . M C Round Hall Thomson Reuters Ireland Limited 83 Admissibility of unconstitutionally obtained evidence after 43 Fitzwilliam Place, Dublin 2 Telephone: + 353 1 662 5301 DPP v JC Fax: + 353 1 662 5302 CECILIA NÍ CHOILEÁIN BL AND ANNA BAZARCHINA BL E: [email protected] web: www.roundhall.ie liii Legal Update Subscriptions: January 2015 to December 2015—6 issues Annual Subscription: €390.00 + VAT 86 Passing Off: An Uncertain Remedy PETER CHARLETON AND SINÉAD REILLY For all advertising queries contact: David Dooley, Direct line: + 44 20 7393 7775 92 Magna Carta – Liberties, Customs and the Free Flow of E: [email protected] Directories Unit. Sweet & Maxwell Trade Telephone: + 44 20 7393 7000 LORD DYSON, MASTER OF THE ROLLS Contributions published in this journal are not intended to, and do not represent, 95 Voluntary Assistance Scheme legal advice on the subject matter DIANE DUGGAN BL contained herein. This publication should not be used as a substitute for or as a supplement to, legal advice. The views expressed in the articles herein are the views of the contributing authors and do not represent the views or opinions of the Bar Review or the Bar Council. The Bar Review July 2015 Principles of Irish Constitutional Equality Law: Recent Developments DR. ELAINE DEWHURST* Article 40.1 has been recognised as a “vital and essential one where there is now a general acceptance that there is a component of the constitutional order”1 and there has wide variety of circumstances involving “human beings in been a slight increase in the number of cases invoking the society” which may fall under the protection of Article 40.1.6 equality guarantee2 in recent years, although this seems Historically, Article 40.1 applies only to human persons to have slowed in 20143. Recent jurisprudence before the (this certainly has not changed) and comes into play only superior courts suggests it is becoming easier to invoke where the individual is discriminated against on the basis the equality guarantee protected by Article 40.1 and that of certain “essential attributes” (referred to as the “basis the courts have found more practical ways of remedying approach”) or where the “essential attributes” of the human breaches. However, traditional doctrine, such as the need for person are affected in a given context (referred to as the a comparator and the justificatory possibilities, ensures that “contextual approach”). Essential attributes have been held to the equality guarantee still remains one of the more elusive include race, religion, sex, language, political opinion, marital constitutional guarantees. Many interesting insights into the status, wealth, pregnancy and age. While many of the cases shifting treatment of Article 40.1 by the superior courts can in 2014 indicate a continuance of this basis approach (e.g. in be gleaned from the decisions of the cases in 2014. This M.R. and D.R.7 reference was made to gender discrimination, article will review these developments in four stages: the disability discrimination and, unusually, birth status8), other engagement of Article 40.1, the interference with Article cases do not obviously entail essential attributes of the human 40.1 and justifying a difference in treatment under Article person. This continues a trend in recent years and attempts 40.1, as well as an examination of the remedies available in have been made by academics and the judiciary to tie these equality cases. cases into either the contextual or basis approach.9 However, it is submitted, with respect, that this is an artificial exercise, Equality in 2014: The Lessons as it appears that there is little to tie many of the more recent cases together other than the fact that the cases involve an Engaging Article 40.1 individual being treated differently by the State on the basis The expansive interpretation given by the courts in recent of some irrelevant characteristic, not necessarily related to years to the engagement of Article 40.1 has continued in their essential attributes as human persons. For example, 2014 and has widened the potential scope for the invocation in Murphy10 the case involved discrimination on the basis of the equality guarantee. The superior courts have moved of the fact the plaintiff had no access to a jury trial in the the equality guarantee from a situation in Quinn4 where Special Criminal Court, whereas others charged with the discrimination on the basis of a person’s trade and employment same offence would have access to a jury trial. In McCabe11, was not considered to engage Article 40.1 and the equality once again in the criminal context, the plaintiff argued that guarantee was considered to be greatly “emasculated”5, to he was discriminated against on the grounds that he had no access to an appeal and in McInerney12, the plaintiff sought to tie a discrimination claim to the arbitrary and unclear nature * Dr. Elaine Dewhurst is a Senior Lecturer in Employment Law at the of the offence he was charged with. University of Manchester ([email protected]). Therefore, it comes as a great relief that the Supreme 1 Murphy v Ireland and Others [2014] IESC 19 at para 33 (per O’ Donnell J). 2 In 2012, there were 5 substantial invocations of the equality O’ Dowd “The Principles of Equality in Irish Constitutional and guarantee. In 2013, that rose to 8 but this fell to just 4 in 2014. Administrative Law” (1999) 11 European Review of Public Law 769 3 There were only 4 cases in 2014: M.R. and D.R. and Others v An at pp. 808-823. t-Ard-Chláraitheoir and Others [2014] IESC 60; Murphy v Ireland and 6 See the dicta of Barrington J in Brennan v Attorney General [1983] Others [2014] IESC 19; McInerney v Director of Public Prosecutions and ILRM 449. Others; Curtis v Director of Public Prosecutions and Others [2014] IEHC 7 M.R. and D.R. and Others v An t-Ard-Chláraitheoir and Others [2014] 181 and McCabe v Attorney General and Another [2014] IEHC 345. IESC 60. 4 Quinn’s Supermarket v. Attorney General [1972] 1 IR 1.This was 8 The applicants claimed that children born via surrogacy reaffirmed by the Supreme Court inAbbey Films v. Attorney General arrangements did not have their best interests considered, whereas [1981] IR 158 at p. 172 (per Kenny J.) this was not the case in relation to children born via non-surrogacy 5 Hogan and Whyte, J.M.