Eircom's "3 strikes" scheme

Since 2010 Eircom have been operating a "graduated response" scheme in collaboration with the record companies.

Public details of this anti-music piracy system have been scant until recently. It can lead to customers having their internet cut off but Eircom have said no one has suffered this fate.

On Sunday we did a story in The Sunday Times about the some of the lobbying which went on before Sean Sherlock enacted a change to Irish copyright law which allows copyright holders to get injunctions from the courts which can lead to websites being blocked. It's known as "Sopa Ireland" to many opponents.

The record companies would like all internet providers to set up a voluntary "graduated response" scheme like Eircom's. If they don't the record companies will go to the High Court to seek the injunctions Sherlock's new law allows.

Some of the lobbying, details of which were released under Freedom of Information law, both against and in favour of the new injunction law, revealed some interesting information and views.

In a meeting last December Willie Kavanagh, chief executive of the EMI Ireland, gave Sherlock a run down of how Eircom's three strikes system was working. He advocated for the power to get injunctions to be brought in quickly. See a memo of this meeting here.

In an earlier meeting the Telecommunications & Internet Foundation, which consists of a lot of the big telcoms, met with Sherlock and expressed opposition to the proposed statutory instrument (SI).

While it's been suspected Eircom might have concerns about the graduated response scheme this document reveals what those fears are.

Basically, Eircom, through Pat Galvin, its head of public policy, is recorded saying "graduated response", as implemented by Eircom "is expensive and does not provide protection or redress for end-users, as is required by the EU Telecoms package".

Quite an admission.

Both pages recording this meeting and that admission are on scribd.com - page 1 and page 2.

those fears.

Eircom are worried there is no independent oversight of their 3 strikes system as is required by the EU Telecoms Reform package signed into law in 2009.

But why sign up for a scheme in 2010 that was in breach of EU law passed a year earlier?

Well the EU law was only transposed into Irish law in July 2011.

According to the EMI briefing, Eircom has cut off the internet connection of 100 customers for seven days and 12 faced having their internet connection (with Eircom) withdrawn permanently. Eircom told me the reason it hadn't cut anyone off permanently was because people's behaviour changed after a number of warnings.

But maybe the reason Eircom won't cut anyone off permanently is because it would breach EU and Irish law.

The admission by Eircom that its system does not adequately protect its users may have knock-on effects. The music industry is taking action against the Data Protection Commisioner (DPC), who has ruled the 3 strikes scheme is in breach of privacy laws. The music companies want the High Court to rule the DPC's intervention, which was to order Eircom to stop running the scheme, is unlawful. Eircom has also appealed the commissioner's decision in the circuit court.

That's a lot of effort to protect a scheme which we now know Eircom told the government privately last year was in breach of EU law.

Appointing Judges

In the last month the Fine Gael/Labour government has appointed its first five judges; two to the High Court, three to the District Court.

All five had strong links with either Fine Gael or Labour.

Despite Alan Shatter, the Minister for Justice, previously attacking Fianna Fail for appointing its supporters to the bench the government seems happy to carry on in similar fashion. (See this Dail debate from 2000 where Shatter asks John O'Donoghue, then Minister for Justice, if the reason for the delay in appointing a judge was because he couldn't find a "card carrying member of Fianna Fail" in the shortlist given to him.)

Last month I wrote a piece analysing (subscription required)

the Judicial Appointments Advisory Board (JAAB) which plays a role in the appointments of judges.

Basically the JAAB gets to create a list of suitable candidates (at least seven, if there are that many interested) and the government gets to pick who it wants from this JAAB list. The government can, if it so pleases, ignore the list and pick any lawyer it wishes. For any government to suggest that political affiliations or contacts play no role in the appointment of judges is laughable.

The appointed judges may all be suitably qualified and approved by JAAB but getting the final nod is at the behest of the parties in power.

Recently The Sunday Times won a significant Freedom of Information victory by forcing the Department of Justice to release six letters (available at the end of this post in .jpg format) it has on record where politicians successfully lobbied the serving minister for justice to have certain lawyers appointed to the bench.

All these judges were appointed after being approved by the JAAB.

Interestingly the judges opposed the release of the letters suggesting if they were made public it would affect their security and they also mentioned their "judicial independence". Richard Oakley, news editor of the Sunday Times in Ireland, has blogged in detail on this FOI case.

While all of these lawyers are undoubtedly suitably qualified, the letters show how lobbying is a part of the appointments process. The JAAB actually prohibits canvassing of its members but this doesn't apply to the lobbying of Minister of Justice or ministers and TDs of government parties.

I'm confident this lobbying still goes on but the politicians are crafty enough now not to commit anything to paper which could come out under FOI.

PS. The third of the letters below was written by Mary Coughlan on behalf of Miriam Reynolds who passed away in 2009. Judge Reynolds' name is somewhat obscured in the letter released under FOI.

Callely hands back more money.

Ivor Callely, the Senator who was recently thrown out of Fianna Fail, has refunded more money back to the state. The latest refund of €737.60 came after Callely reviewed his Oireachtas expense files last month.

Callely has already refunded €2,879 in mobile phone expenses after he admitted that invoices he submitted were fake. The invoices he submitted from Business Communications in Fairview from 2002 to 2006 came years after that company was dissolved.

The Senator has now found that as well as four claims for mobile phones based on fake invoices from Business Communications, there was another claim in 2008 which was based on an invoice from In-Tech Ireland based at the same Fairview address.

This gets stranger and stranger.

A former In-Tech employee confirmed to me that the company did share an adress with Business Communications, owned by the Baxter family, but In-Tech moved to Finglas in 2002. This source said In-Tech Ireland never sold phones either.

According to a representative of Callely, he decided to make this second refund because of "concerns" over the validity of an invoice from the same Fairview address used in previous invoices.

The full story is in The Sunday Times. You can see Ivor's letter of refund and cheque here.

Dick Roche attacks HSE tender for taxis in Wicklow

We published a story in The Sunday Times today about how Dick Roche, the Minister for Europe, had tried to get the board of the HSE to hold off from awarding tenders for taxi services after a Wicklow firm failed to secure a contract earlier this year.

The Wicklow firm that Roche lobbied for is run by Pat and Irene Sweeney in Arklow. Pat Sweeney has been a town councillor in Arklow for Fianna Fail while Irene, his wife, ran unsuccessfully for Fianna Fail in last year's local elections.

Roche wrote to Brendan Drumm, chief executive of the HSE, and the HSE's board to criticise the "fundamentally flawed" HSE tender process for taxi services in which the Sweeney's failed to win a contract. The entire correspondence, as released through the Freedom of Information Act, is available here.

The first email which describes the tender process as having fundamental flaws is sent from Roche's Department of the Taoiseach email. Two further letters are sent on official Department of the Taoiseach paper including one where the HSE's response is described as "completely inadequate". The minister says that he is only getting involved because of concerns for his constituents' safety under the new taxi service.

There are some choice quotes from Roche in these letters and emails.

1. Roche asks that his complaints be "considered fully before the HSE board makes any final decision in the case". Testimonials for the Sweeneys that he includes from a doctor and two patients "must" be factored in to any final decision the HSE makes on the tender. He also asks for HSE management to have a face-to-face meeting with Irene Sweeney before making a final decision on the contract.

2. The HSE scoring system "defies logic". It is focused on "bureaucratic requirements rather than patient systems".

3. Regarding National Radio Cabs (NRC), a rival taxi firm:

"...even a casual user of taxi services in the greater Dublin area must come to the conclusion that that they are far from exemplary.... "

"Have you checked them for cleanliness? Have you checked the capacity of the drivers to find to find their way around the remote villages and rural villages of Co Wicklow? If you haven't done these things how in the name of goodness can you possibly score a potential contractor based far away from these remote parts of Co Wicklow more highly than you could score the Sweeneys?"

In fact the NRC's contract with the HSE only covers the Dublin area. It's amazing Roche would seek to denigrate another taxi firm like this.

4. On a Department of the Taoiseach letter sent on February 18, Roche writes to the HSE board to say the new taxi service "cannot work" and any saving achieved is "at the cost of patient comfort and service".

5. On a further letter sent to Drumm on February 18 from the Department of the Taoiseach, and copied to Mary Harney, the Minister for Health, Roche says the HSE's responses have been "entirely unsatisfactory in tone and content". He wrote that the service arrangements entered in to by the HSE "are not focused on patient care" and HSE officials "on the ground" were not consulted.

6. This letter questions whether the HSE tender operated in a "fair, open transparent and non-discriminatory manner".

7. Roche says the HSE did not respond to valid questions from a public representative.
"Your organisation is not above public scrutiny," he tells Drumm.

8. In a further letter on March 15, from Roche's constituency office, the HSE's responses are again criticised.
"It strikes me that Tallaght is not the only institution in the health service that is very poor in terms of responses to communications," he wrote.

9.In this letter he describes a problem with the new taxi service. In one instance an old lady getting dialysis had to spend over an hour waiting in a taxi for another patient. This was a "last straw". He said the woman later tried to take her own life. He goes on to say her problem with the taxi service wasn't a direct contributory factor as she had other family problems but it "didn't help".

The correspondence is remarkable. The criticisms from Roche wouldn't wouldn't look out of place in an opposition TD's speech attacking the HSE.

James Reilly, Fine Gael's spokesman on health, told us that he believed Roche's letters were "unacceptable" as they were a clear attempt to influence the HSE's tender process. Reilly said he will be calling on Mary Harney to make a statement on the matter.

The Irish Red Cross takes on the internet - and wins

Despite the recent floods in Pakistan the Irish Red Cross (IRC) has been relatively quiet in comparison to other Irish charities who have made numerous public appeals for donations.

I only heard an IRC radio ad for its Pakistan appeal for the first time yesterday.

One reason behind the IRC's quietness is its suspension of Noel Wardick, head of its International Department, who is now the subject of an internal disciplinary investigation.

Wardick is a well known and respected aid worker. In January of this year he made a presentation to the Oireachtas committee on Foreign Affairs. Along with representatives from Concern and Haven, Wardick briefed the committee on the problems that aid agencies were facing in Haiti following that earthquake.

At the time of this presentation the IRC's staff were coming to terms with the
resignations of its chairman and its secretary general - namely David Andrews and John Roycroft. Andrews was replaced on a temporary basis by Tony Lawlor, a long time volunteer board member.

Someone with inside information on the IRC had by this time set up an anonymous blog to call for drastic reforms of the charity. The blog obviously irritated and upset many in the IRC including Lawlor and Declan O'Sullivan, the temporary secretary general. Others like Jenny Bulbulia, a board member who resigned in protest at a lack of financial accountability in the IRC last year, has maintained the blog has only raised valid issues.

In July the charity instigated High Court proceedings against Google and UPC in an effort to find out who the blogger was and to stop him/her undermining the charity. This legal action has garnered quite a bit of media attention.

What wasn't clear from the court reports was how UPC came to be involved.

It's emerged that as well as targetting the blog the IRC's senior management became aware of an anonymous email that was sent to many of its council members. Coming from a Hotmail account this email alerted IRC council members that there was a blog calling for the reform of the charity that was worth checking out.

Employing an IT expert, it was easy for the IRC to establish that the author of this anonymous Hotmail account had used an IP address registered with UPC. The IRC asked both Google Ireland and UPC to give up the details of the anonymous blog and the email's author but to no avail, until last month's High Court hearing.

UPC did not object to the IRC seeking discovery of the registered owner of the IP address it had tracked as sending the anonymous Hotmail email. Judge Brian McGovern granted this discovery order and by the end of that week the charity was provided with the name of the UPC user registered at that account.

The details passed on by UPC were those of Noel Wardick. I'm reliably informed that the internet provider did not even warn Wardick before providing his details to the Red Cross. Days after receiving this information Wardick was suspended. An IRC disciplinary hearing in to his alleged misbehaviour is scheduled for next week.

This case shows there is little protection for online anonymity in Ireland. In this case the judge granted the discovery order after hearing the Irish Red Cross side of things but the UPC user was never given an opportunity to present an opposing point of view. Maybe the judge would have granted the order after hearing a counter argument anyway but the precedent here needs to be considered by anyone thinking of whistle-blowing through an anonymous email in Ireland.

(I am told that if the UPC customer had used Gmail instead of Hotmail their IP address wouldn't have been visible. Also internet cafes avoid the possibility that your Internet Service Provider might dob you in it.)

Meanwhile, the IRC is pursuing its action against Google, to try and find out who is the author of the blog. The judge could not grant a discovery order against Google last month because the IRC had mistakenly taken the case against Google Ireland, which has nothing to do with running Blogspot. Google has said it takes its user's privacy very seriously which may mean it won't go the same road as UPC.

If you want to read more on the problems in the Irish Red Cross and the legal action I've written several stories about this in The Sunday Times (subscription required).

HSE's €600,000 €800,000 secret settlement

Two weeks ago we published details of a secret €600,000 settlement the HSE agreed with Lifeline Ambulance in 2008.

The settlement figure was released 14 months after a Freedom of Information request was made and required an order by Emily O'Reilly to the HSE to release the information. O'Reilly said she encountered "misleading and incomplete" responses from the HSE in her investigation. And that assessment doesn't include an analysis of the HSE's actions of the last two weeks.

I believe the HSE's handling of the release of the settlement figure demonstrates its blatant disregard for being held to account for its handling of public funds.

Initially, on Wednesday, May 12, Donall King, from the HSE's legal services office, issued me a document which hid the legal settlement figure in the annual payments the HSE made to Lifeline. Needless to say I complained that wasn't good enough.

On Thursday, May 13, I received a phone call from King to confirm the settlement amount paid to Lifeline would be released by the HSE.

King was offered an email address to send the details to but said he'd prefer to employ a courier to transport the three-page document across Dublin. This document contained the settlement figure of €600,000 which we went on to publish. The HSE press office was offered a chance to comment on the €600,000 figure on that Thursday before publication but declined.

Last Wednesday, May 19, following publication of the €600,000 figure, I was tipped off that the figure supplied by the HSE was incorrect. It was actually €800,000 that the HSE paid to Lifeline.

The HSE didn't volunteer this correction but when asked about it King, eventually, confirmed it was wrong. "A typo," he explained.

Of course, there wouldn't have been any danger of "a typo" occurring if the HSE had released a copy of the Lifeline settlement agreement as ordered by Emily O'Reilly. Instead I got a freshly compiled document complete with inaccurate figures.

Did we get an apology from the HSE for its mistake? To borrow a phrase from Michael Bailey, "Did we f***."

Consumer Watchdog Stays in its Kennel

Earlier this year we reported on the average €18,000 a month the National Consumer Agency is spending on PR with Q4 PR.

There are NCA staff who are unhappy the agency is spending so much on PR especially at a time when it has low staff numbers and those staff are no longer encouraged to do field inspections. Instead of carrying out inspections the NCA sends retailers and others letters warning them to comply with regulations.

Under consumer legislation the NCA can prosecute retailers for not complying with price display rules or selling unsafe products.

The NCA is also responsible for implementing the European rapid alert system — RAPEX — for unsafe products which have to be removed from the market. Since 2004 the number of notifications issued though the system in Europe has increased from 468 to 1,993 in 2009. The number of recalls initiated by Ireland has dropped from 32 in 2007 to 20 last year.

A Freedom of Information document released last week showed that up to March 19 this year the NCA hadn't carried out a single field inspection anywhere throughout Ireland. Since then one survey has been carried out and one more is in progress.

The savings in travel and expenses have been small enough. The NCA paid around €100,000 in travel and expenses to staff in 2007 and 2008 when it was carrying out about 1,000 inspections a year nation-wide. Total expenses dropped to €46,518 last year when there were 626 inspections while just €651 has been paid out this year.

The NCA said the fall off in field inspections was due to it "refocusing" its resources.

“Our approach to enforcement of consumer protection legislation has been developing to reflect the increased powers and enforcement tools available under the Consumer Protection Act, 2007,” said an NCA statement.

“Our enforcement efforts are concentrated on those areas where there is the greatest potential for consumer loss or detriment, while not losing sight of other areas which impact on consumers’ welfare," it continued.

“The Agency has significantly restructured and refocused its activities in recent years and continues to develop its approach to enforcement. Historically, our predecessor, the Office of the Director of Consumer Affairs (ODCA), devoted considerable resources to the enforcement of price display and misleading pricing breaches. Every single pricing complaint was followed up with a physical visit. This was not necessarily the most effective use of scarce resources.”

The NCA said it continued to take price-display breaches “very seriously” but it now dealt with complaints on a “risk basis” using a combination of written procedures and follow-up visits.

The NCA insisted it had an “extensive programme of inspection activity” planned for the rest of 2010.

The consumer agency has an approved headcount for 80 staff but it currently employs just 43. Its planned decentralisation to Cork has been cancelled and the government has said it plans to merge the NCA with the Competition Authority

Most of the NCA staff are on secondment from the Department of Enterprise, Trade and Innovation. Plans to recruit permanent staff for the agency were put on hold in 2008 dut to government cutbacks.

For the moment the NCA carries on as an under-resourced quango without much bite.