Categories
Consumer Rights

Discrimination Claim About AIB Campaign Featuring “Abusive Teller Machine” Misconceived But Not Vexatious

The complainant in this case brought a claim under the Equal Status Act, 2000 (amended by the Equality Act, 2004) claiming that a YouTube video campaign of AIB bank, featuring a video entitled “Abusive Teller Machine”, was grossly offensive to men. 

The claim was brought to the WRC (Workplace Relations Commission) which is the appropriate venue for all complaints about discriminaiton in the provision of goods and services.

Was there a service?

However, the first problem this man faced in winning any claim of discrimination was that he had not actually attempted to avail of a service offerd by AIB and therefore was not entitled to bring the claim. That is to say, he did not have “locus standi” to bring the case as he had not been refused any goods or services as part of the AIB marketing campaign.

The bank also claimed Mr. Walsh had no locus standi to bring a claim on behalf of a group (men) and relied on Gloria (Ireland’s Lesbian and Gay Choir) vs Cork International Choral Festival (DEC-S 2008-078) as authority for the proposition that an orginsation or public body could not bring a claim under the Equal Status legislation.

Moreover, the bank claimed that Mr. Walsh did not put forward a prima facie case and failed to discharge the burden of proof on him. This burden of proof required him to show facts from which a reasonable inference of discrimination could be shown. If he could not establish a prima facie case the bank had no obligation to defend it and no case to answer.

The Complainant was unable to put forward any such facts because he did not try to avail of any service of the bank.

The bank also argued that the complaint was misconceived because the WRC could not deal with it if it was made in bad faith or was frivolous or vexatious.The Bank argued that the meaning and scope of the word ‘misconceived’ has been set out by the High Court in Keane v The Minister of Justice (1994)3IR347 wherein this case it was found that a claim is misconceived if it is incorrectly based in law.

Decision

The adjudicator found that the posting of the video on YouTube was not itself an offering of a service but was part of a campaign about financial abuse. No discrimination could have been suffered, therefore, and the adjudicator so found.

Regarding the burden of proof on the complainant it was found that the complainant never sought the service from the bank and could not establish facts from which  prima facie case could be shown.

Regarding whether the claim was misconceived or frivolous the adjudicator found that the complainant felt strongly about the issues he had raised and was genuine in his belief that the campaign was offensive to men.

From a legal perspective “frivolous and vexatious” means the complaint had no chance of succeeding and the complaint was a hardship on the defendant to have to defend something that had no chance of success. 

The bank relied on jurisprudence Thomas Whelan vs The Football Association of Ireland (DEC-S2018-001) in identifying that the meaning and scope of the words frivolous and vexatious were succinctly articulated by a decision of the supreme court by Barrow in Farrelly vs Ireland and ORS (1998)ELR256 which stated that “so far as the legality of the matter is concerned frivolous and vexatious are legal terms. They are not pejorative in any sense or possibly in the sense that Mr Farrelly may think they are. It is merely a question of saying that so far as the plaintiff is concerned if he has no reasonable chance in succeeding then the law says that it is frivolous to bring the case. Similarly, it is a hardship on the defendant to have to take steps to defend something which cannot succeed and the law calls that vexatious”.

The Adjudicator found that the complaint was not found to be vexatious as Mr Walsh had sincerely held views about the matter of which he complained.

But the adjudicator did find that the complaint was misconceived as, according to Keane v The Minister of Justice (1994) 3IR347, it was incorrectly based in law and had no merit and could not succeed.
Read the full decision here.

Categories
Consumer Rights

New Gift Voucher Legal Protections from 2nd December 2019-Minimum Expiry Period of 5 Years

The law regarding gift vouchers changed from 2nd December 2019, thanks to the new Consumer Protection (Gift Vouchers) Act 2019 Act.

This act introduces welcome changes in relation to expiry dates and outstanding balances.

The Act came into force from 2nd December 2019 and relates to gift vouchers only.

The voucher must have been purchased after 2nd December 2019 and there are certain types of products which are not covered:

  • One4All vouchers and other ‘electronic money’ products
  • Groupon vouchers and other vouchers which are for a specific product or service from a specific trader on a specific date or timeframe not exceeding 3 months
  • Vouchers offered as part of a customer loyalty scheme
  • Vouchers supplied by way of a refund for goods or service returned to the trader

New Protections

The new protections include

  1. The gift voucher must have an expiry date no earlier than 5 years
  2. It cannot be insisted that the entire gift voucher be used in one transaction
  3. A transfer of a voucher to a third party sees all of the rights accruing to the original purchaser transferring to the third party
  4. No limit on the number of vouchers in a single transaction is permitted

Any terms and conditions which a trader seeks to impose, and which attempts to trump the rights afforded by the act are of no effect. Moreover, traders can face criminal prosecutions, summarily and on indictment, for breaches of the Consumer Protection (Gift Vouchers) Act 2019 Act.

You can find some useful links on the Department of Business, Enterprise and Innovation website here.

Categories
Consumer Rights Defamation

Defamatory or Illegal Content on Social Media Sites Can Be Removed Worldwide-ECJ Decision in Facebook Ireland Case

Do you think the social media sites do enough when it comes to the offensive material that is published on their platforms?

Do Facebook and Twitter, for example, act swiftly (or at all) to remove the hate speech and racist stuff that is on full view courtesy of various keyboard warriors hiding behind fake names and flags?

The Court of Justice of the European Union has just handed down an interesting decision in a case taken against Facebook Ireland. The case I am referring to is Eva Glawischnig-Piesczek v Facebook Ireland Limited Case C-18/18, Court of Justice of the European Union, with a decision delivered on 3 October 2019.

What the ECJ decided

The European Court of Justice has held that Facebook can be ordered by EU national courts to remove or block access to defamatory material-defamatory, that is, in the eyes of the national court of the EU member state.

There is a further significant outcome to this decision: a national court’s decision that material should be removed means it can be ordered to be removed in another country even if, in that other country, the material is not defamatory or illegal.

Eva Glawischnig-Piesczek v Facebook Ireland

Ms Glawsicnig-Piesczek is an Austrian politician who requested Facebook remove certain comments about her made by a user on Facebook. The Supreme Court in Austria referred the case to the European Court of Justice as it held the comments to be illegal and defamatory.

The consequences of the EU Court decision

  • Social media platforms can be ordered to remove or block access to identical information declared unlawful
  • They can be ordered to remove equivalent information deemed unlawful or defamatory
  • The decision applies on a worldwide basis-that is to say if it is deemed unlawful in Austria, for example, the comments cannot be published on Facebook UK or Facebook Ireland.

As a consequence of this decision the Supreme Court in Austria now has the power to decide on where and how the material is to be removed. This remains to be seen but the Austrian Supreme Court now has the authority to order Facebook to remove the comments on every Facebook platform worldwide and this was one of the questions referred by the Supreme Court in Austria.

Conclusion

This is good news for the user of the platform and gives an individual more power to ensure illegal or unlawful comments are not published anywhere and there is no getting around the order of a national court to remove illegal comments.

This is a significant increase in the power of the user of social media platforms and places far greater obligations on the social media companies such as Twitter, Facebook, Instagram, YouTube, etc.

You can read the entire judgment in Eva Glawischnig-Piesczek v Facebook Ireland Limited here.

Read the press release of the Court of Justice of the European Union the 3rd October 2019.

Categories
Consumer Rights

Discrimination in the Provision of Goods and Services in Ireland-the Essentials

equal status discrimination

Not a lot of people know this..

Most people think the WRC (Workplace Relations Commission) only deals with employment and/or industrial relations issues.

That’s not the case, at all.

The Workplace Relations Commission also deals with complaints about discrimination in the provision of goods and services, accommodation, and access to education under the Equal Status Acts 2000-2015.

Discrimination in the context of employment has 9 grounds of discrimination. But under equality legislation there is now 10 grounds of discrimination, thanks to the Equality (Miscellaneous Provisions) Act 2015, which created a 10th ground in respect of housing assistance.

The main thrust of the Equal Status acts is to prevent discrimination in relation to the provision of all services, including entertainment, banking, transport, travel, insurance, and more.

The 10 grounds of discrimination covered by the Equal Status acts are

  • Gender
  • Civil status
  • Race/colour/nationality
  • Family status
  • Sexual orientation
  • Age
  • Membership of the travelling community
  • Disability
  • Housing assistance in relation to the provision of residential accommodation
  • religion.

How to Make a Complaint to the WRC

The first thing you must do is to complete and send a form-ES1-which is a notification in writing to the person/company who you are complaining about. This form must specify the act of alleged discrimination and must be received by the other party within 2 months’ of the incident.

The other party does not have to respond, but if he chooses to do so may use form ES2.

If the other party ignores you and does not respond within 1 month, or you are not happy with the reply, you can then refer the complaint to the WRC for adjudication. This referral must be made within 6 months of the alleged discrimination.

In due course an adjudication hearing will be heard and both parties can put their side of the story forward and the adjudicator will make a decision.

Equal Status Acts in Ireland

The relevant legislation is:

  • The Equal Status Act, 2000
  • The Equality Act, 2004
  • The Equal Status (Amendment) Act, 2012
  • The Equality (Miscellaneous Provisions) Act, 2015.

The Law Reform Commission has published a consolidated version of the Equal Status Acts which you can access here.

Categories
Consumer Rights Family Law

How to Change a Name by Deed Poll

bare trust

If you want to change a name by deed poll, the Judgments Section of the Central Office of the High Court will be your first port of call.

The Judgments Section/Deed Poll section will give you precedent wordings that you can use and adapt to your own particular circumstances and which will be used in your deed poll application.

Changing a Child’s Name

If the child is aged between 14 and 17 years, the child can execute/sign a deed poll with the consent of both parents.

If a child is under the age of 14 years, a parent who is a guardian must sign the deed poll with the consent of the other guardian. If this consent is not forthcoming you need to contact the Judgments Section of the Central Office of the High Court.

Documents Required

To change a name by deed poll you will need

  • The deed poll printed on good quality strong paper-deed paper, parchment paper, or judicature paper is recommended
  • An Affidavit of Attesting Witness-this is a sworn statement from the person who witnessed the execution/signing of  the deed poll
  • The Original Birth Certificate of the person who wants to change name.

There is a stamping fee of €35 which will need to be stamped on the deed poll.

All documents to do with your deed poll application must be lodged by hand in the Judgments Section of the Central Office of the High Court.

Foreign Nationals

A foreign national must first obtain a change of name licence from the Irish Naturalisation and Immigration (INIS) before filling out  a deed poll. A British citizen does not need a licence but will need a letter from the INIS confirming this for the Deed Poll section of the High Court.