27 November 2015

US Consumer Redress

'Consumer Redress in the United States' by Amy Schmitz in The Transformation of Consumer Dispute Resolution in the European Union: A Renewed Approach to Consumer Protection (Oxford University Press, 2016, forthcoming) provides 
a snapshot of consumer redress processes in the United States, and suggests policy reforms building on advances in the European Union. The US traditionally has been distinct in its allowance for class relief and other judicial action as the primary means for consumers to pursue remedies in B2C transactions. However, these traditional American remedies processes have diminished due to the strict enforcement of pre-dispute arbitration clauses and other restrictions on class actions in the US. Furthermore, US small claims court and credit card chargeback procedures are limited and outdated, while emerging online complaint and dispute resolution processes remain largely unregulated. This leaves many consumers without meaningful access to remedies when they experience purchase problems. Accordingly, the chapter will suggest ideas for regulatory reforms building on the EU model for ODR aimed to expand consumers’ access to remedies with respect to their small dollar claims.
Schmitz notes
Borders are losing meaning in business-to-consumer (“B2C”) transactions as consumers increasingly satisfy their purchasing needs through Internet contracting (“ecommerce”). This is because ecommerce brings together buyers and sellers from all over the world and eliminates the need for face-to-face (“F2F”) negotiations. However, borders matter when disputes develop due to jurisdictional difference in laws and procedures for obtaining remedies. It is therefore critical to consider legal redress mechanisms on a global scale. Businesses and policymakers must address differences in consumer redress systems, and collaborate to create mechanisms that operate efficiently and fairly for consumers regardless of residence. ...
F2F processes in general have not provided consumers with adequate redress on claims against businesses regarding common purchases. It is rarely worth the cost and stress of pursuing these processes when the expected recovery is low. Additionally, businesses in the U.S. may use arbitration clauses to hinder consumers from shedding public light on purchase problems or obtaining remedies on their claims. At the same time, although small claims court, credit card chargeback, complaint portals, and limited ODR systems for B2C claims exist in the U.S., U.S. lawmakers have not advanced development of robust ODR systems aimed to deliver due process for consumer purchase disputes.
In contrast, the E.U. leads the U.S. in developing ODR programs. This Chapter suggests that the U.S. should follow the E.U. in promoting ODR processes designed to revive corporate responsibility and consumer trust in their purchases. These processes must be transparent, user-friendly, and economical in light of the complexity and possible payouts on the claims at issue.138 They also should be secure and subject to government oversight to ensure fairness. Such processes would benefit consumers and companies, and advance cross-border B2C trade as the U.S. brings its dispute resolution policies in line with peers overseas.

Prisoners and health

The latest Australian Institute of Health and Welfare report on The health of Australia's prisoners (the 4th report on the National Prison Health Indicators)
includes data from 1,011 prison entrants, 437 prison dischargees, over 9,500 prisoners who visited a prison health clinic and about 9,400 prisoners who took medications. These data were provided by prisons in all states and territories in Australia except New South Wales, which provided data on prison entrants only. Participation was not complete - 84% of prisons participated, with about 49% of prison entrants and 42% of sentenced dischargees in those prisons taking part. Accordingly, the information in this report needs to be interpreted with some caution. 
The AIHW indicates that the 224 page report [PDF]
 includes, for the first time, data on the smoke-free status of prisons, disabilities and long-term health conditions experienced by prisoners, and self-assessed health status. Mental health issues and risky health behaviours, including tobacco smoking, excessive alcohol consumption and illicit use of drugs, continue to be the main areas of concern. The health of Indigenous prisoners (over-represented at 27% of the prison population) is also a continuing concern.
Tobacco smoking
Prisoners in Australia continue to have high smoking rates compared with the general population. Almost three-quarters (74%) of prison entrants were current smokers, with 69% of entrants indicating they smoked daily. One-half (50%) of entrants who smoked on entry to prison reported that they would like to quit. Smoking bans are in varying stages of implementation in Australian prisons. Almost three-quarters (74%) of prison dischargees in prisons allowing smoking currently smoked, with one-in-six (16%) indicating that they smoked more now than they did on entry to prison. Dischargees from prisons with smoking bans were more likely to use quit smoking assistance in prison. Of those who smoked on entry to prison, dischargees from prisons with smoking bans were less likely to intend to smoke after release (59%) than those from prisons in which smoking is allowed (73%).
Almost one-third (30%) of entrants reported a long-term health condition or disability that limited their daily activities and/or affected their participation in education or employment. Limitations to daily activities were the most common (24%), followed by restrictions in employment (16%) and education (12%). About 2% of prison entrants needed help and/or supervision in the areas of self-care, mobility and/or communication. Entrants aged between 35 and 54 years were more likely to have some form of limitation or restriction than their general community counterparts.
Self-assessed physical and mental health
Prisoners being discharged from prison were more likely than those entering prison to report their mental health as generally good or better (78% compared with 67% respectively) and less likely to report it as poor (4% compared with 8%). A similar pattern was seen in self-reported physical health, with dischargees slightly more likely to report their physical health as generally good or better than entrants (78% compared with 73%).
It notes
Prisoners have higher levels of mental health problems, risky alcohol consumption, tobacco smoking, illicit drug use, chronic disease and communicable diseases than the general population (AIHW 2013a). This means that prisoners have significant and complex health needs, which are often long-term or chronic in nature. The health of prisoners is sufficiently poorer than in the general community such that prisoners are often considered to be geriatric at the age of 50–55 (Williams et al. 2014).
The United Nations Commission on Crime Prevention and Criminal Justice on 22 May 2015 adopted updated standard minimum rules on the treatment of prisoners, to be known as the ‘Mandela Rules’. This update to the original 1955 rules details the provision of health care to prisoners, and includes principles of equivalence (to the community standard); independence; multidisciplinary care including psychological and psychiatric, and dental; and continuity of care back to the community upon release from prison (United Nations 2015). These rules, launched by the General Assembly of the UN in October 2015, are reflected in the Australian context. The Corrective Services Administrators’ 2012 Standard Guidelines for Corrections in Australia specifically reference health care provision in prisons, including equivalence of care, access to both primary and specialist health professionals, medical examination within 24 hours of being received into prison, continuity of care between the community and prison, care for pregnant female prisoners, mental health and disability (AIC 2012).
Prison stays are usually temporary. On 30 June 2014, about one-quarter (24%) of prisoners were on remand while awaiting trial or sentencing. For those who were sentenced, the median time expected to serve was 1.8 years (ABS 2014e). As a result, the prison population is fluid, with prisoners constantly entering prison and being released from prison, and the health issues and concerns of prisoners therefore become those of the general community.
Prisoner health services in Australia
In Australia there are several differences in the way health services are provided to prisoners compared with the general community, including funding arrangements and models of service delivery. xxxxx In the general community, health services are provided through both the Australian Government and the relevant state or territory government. However, health services for prisoners are the responsibility of state and territory governments only, and the manner in which these services are delivered varies among jurisdictions.
In some states and territories the local Department of Health provides health services in prisons, while in others it is the responsibility of the Department of Justice or Corrections. Most jurisdictions use a mix of directly-provided services, community health services and contracted health services. The provision of mental health services and alcohol and other drug services can be particularly complex, both in the services delivered and the method of delivery. In prisons, primary health care, or the first level of contact with the health care system, is predominantly delivered by nurses. In the general community, however, most primary care is provided by general practitioners.
Specialist medical care can be provided to prisoners within the prison system or through non-prison-based services—such as general hospital inpatient and emergency care— depending on the prison, jurisdiction and service required. For example, some prison clinics have the capacity to deliver dental services and perform X-rays, whereas other smaller clinics are staffed by a single nurse only.
Medicare enables residents of Australia to have access to free or subsidised health care by health professionals such as doctors and nurses, including free treatment and accommodation in public hospitals. Medicare is funded by the Australian Government and does not apply to services provided directly by state and territory governments. This means that prisoner health services are effectively excluded from Medicare. The Pharmaceutical Benefits Scheme (PBS), which enables access to medicines at lower cost for Australian residents, is also funded by the Australian Government. Prisoners are therefore excluded from the PBS as well, except for Schedule 100 of the PBS, known as the Highly Specialised Drugs Program.
Healthcare in the prison environment
For prisoners who may underuse health services in the general community, prison may provide an opportunity to access treatment to improve their health. Many types of health care are accessed less often in the community than in prison (see section 15.1) for a variety of reasons, including cost, work or family commitments, and alcohol and drug issues (see section 15.2). The stability and regimentation of the prison environment may provide opportunities for prisoners to reflect on and seek treatment for their health concerns. However, the provision and operation of health services in a prison environment is not always straightforward. For example:
▪ Regimes and processes in place in a prison environment may make the goal of equivalence and continuity of care between the community and prison difficult to achieve, especially upon entry.
▪ Delays in being able to establish communication with a prisoner’s community-based general practitioner or psychiatrist, or to confirm existing prescriptions, may in turn lead to disruptions to regular medications or changes to established medication practices. Such issues may leave prisoners at increased risk of mental instability at the particularly difficult time of transition into prison (Bowen et al. 2009).
▪ Uncertainty surrounding exact discharge dates, which can be affected by, for example, applications for bail and parole, increases the difficulties associated with continuity of care into the community following release.
Tobacco smoking is a significant health issue in the prison environment, with around 75% of prisoners entering as current smokers in 2015, and prison being a particularly difficult environment in which to successfully quit (AIHW 2013b). Smoking is banned in all enclosed public places and most outdoor public areas in Australia, and bans are increasingly being introduced to prisons (see Chapter 11 ‘Tobacco smoking’).
The prison population in Australia is increasing both in overall numbers and in the rate of imprisonment (see section 2.1 ‘Australia’s prisoners’), and many prisons are at or over capacity. Prisons in Australia were operating during 2013-14 at 104.4% of design capacity, meaning that there were more prisoners than the prisons were designed to accommodate (excludes Victoria and South Australia, who did not provide data) (Productivity Commission 2015). One of the strategies used to manage this over-capacity is an increase in movements of prisoners between prisons, making continuing health service provision more difficult (Grace et al. 2013) .... A population-based linkage study in Australia of adults in their 20s and 30s found that around one-third (32%) of those with a psychiatric illness had been arrested during a 10-year period, and the first arrest often occurred before first contact with mental health services (Morgan et al. 2013).
Prisoners have a high prevalence of self-reported mental health issues (AIHW 2013a), which continue to affect prisoners after release. Prisoners ever-diagnosed with a mental health disorder have been found to be more likely to experience substance use issues, crime, and poor health outcomes, up to six months post-release from prison (Cutcher et al. 2014). Self-reported information on mental health is quite different to a clinical diagnosis or research using diagnostic tools. For example, in a culturally sensitive research study involving Indigenous respondents, a higher prevalence of mental health issues could be found by using Indigenous mental health clinicians specially trained for the data collection (see Heffernan et al. 2012).
Prison entrants were asked whether they had ever been told that they had a mental health disorder by a doctor, psychiatrist, psychologist or nurse; and whether they were currently taking medication for a mental health disorder. Disorders included those relating to drug and alcohol abuse. A nurse was included in this list of health professionals in recognition of the high proportion of entrants with a history of imprisonment, and the nurse-led health care provided in prisons, including mental health nurses (see Chapter 15 ‘General health services’). Prison dischargees were also asked whether they had ever been told they had a mental health disorder and whether it was diagnosed while they were in prison this time. Prison dischargees were also asked a separate question about whether they had ever been told that they had alcohol or drug use problems. To make the data comparable with data from the entrants’ question, responses to these two questions were combined to create one variable that indicated whether the dischargee had been diagnosed with both or either of these problems.
Almost one-half (49%) of entrants and 44% of dischargees reported ever having been told they have a mental health disorder, including alcohol and drug misuse (Table 4.1). This is an increase from 38% of entrants in 2012. In 2015, among both entrants and dischargees, women (62% and 63% respectively) were more likely than men (40% and 47%) to report a history of mental health issues. There were fluctuations by age, although the youngest were the least likely to report a history, for both entrants (40%) and dischargees (30%). Fewer Indigenous (44%) than non-Indigenous (51%) entrants reported a history, but among dischargees the difference was less apparent. ....
 In the current data collection, 41% of dischargees thought that their mental health had improved since being in prison, with 19% reporting that it is ‘a lot better’ and 22% ‘a little better’. Less than 10% (9%) of dischargees thought their mental health had deteriorated while in prison, and 44% reported no change. Male dischargees were less positive than women, with 10% of men reporting that their mental health had become a little or a lot worse since being in prison, compared with 4% of women. Almost half (45–47%) of dischargees aged 25–44 reported an improvement in their mental health, compared with around one-third (30–33%) of the youngest and oldest dischargees. Indigenous dischargees were more positive than non-Indigenous dischargees in their responses. Just over one-half (51%) of Indigenous dischargees reported that their mental health was either a lot better (22%) or a little better (29%), compared with a combined 38% for non-Indigenous dischargees. Almost one-half (46%) of non-Indigenous dischargees reported no change in their mental health and wellbeing compared with 35% of Indigenous dischargees.


'The right to be forgotten: balancing interests in the flux of time' by Giovanni Sartor in (2015) International Journal of Law and Information Technology comments
The passage of time may reverse the balance of interests involved in the processing of personal data. This provides a rationale for the so-called ‘right to be forgotten’ – namely, data subjects’ right to exclude or limit the further processing of their personal information. This right has been endorsed in a number of judicial decisions in various EU Member States and has been affirmed in the recent Google-Spain decision by the European Court of Justice. To analyse the rationale of the right to be forgotten, I consider the evolving balance between legally relevant advantages and disadvantages resulting from the processing of personal data. For modelling this evolving balance, I propose a method based on the identification of trends over time and on their graphical representation. On the basis of this analysis, I consider how remedies and sanctions meant to implement the right to be forgotten may affect expectation and motivations of content and host providers, and consequently influence their behaviour. I argue that in the EU legal framework data subjects should be granted the right to request from competent authorities an injunction to have their personal data removed or their distribution limited when unrestricted online distribution is no longer justified by the balance of the interests at stake. However, sanctions against online distribution may induce premature forgetting. In particular, they may have a chilling effect on the distribution of information for journalistic purposes, negatively affecting freedom of expression and information.
Sartor concludes
When information is distributed online, the importance of impacts on the affected legal interests may change through time. In particular, the interference on the data subjects’ privacy interests may subsequently outweigh the originally prevailing publicity interests of publishers and readers. This pattern provides a rationale for a right to have personal information delisted, de-indexed or removed from the Internet, even when its online distribution was originally legitimate.
The existence of such a right justifies granting data subjects a power to request the competent authorities to issue injunctions restricting access to personal data. However, it does not justify subjecting publishers and the providers to sanctions in all cases in which, according to the subsequent judgment of the competent authority, the data has continued to be distributed after the balance of interests has changed in favour of privacy. In fact, data protection sanctions include both pecuniary and moral damages and severe fines, which may have a chilling effect.
Two circumstances motivate this concern. First, the parties (publishers and the host providers) usually have a small motivation to continue the online distribution of a particular piece of information, since they only partially internalize the social benefits resulting the availability of the information. Secondly, they are uncertain on the adjudicator’s assessment concerning the reversal time, namely, the time at which privacy interests start to outweigh publicity interests. Under such circumstances it seems likely that expected sanctions will outweigh the parties’ motivation to continue the distribution, even when the information could be legally published. This may lead to self-censorship by the publisher or to collateral censorship by the provider. I have consequently argued that publishers should not be sanctioned for failing to comply with requests by data subjects, unless the illegality of the continued distribution can be easily established. Host providers—including search engines—acting in good faith should enjoy an even broader immunity for failures to comply with private requests, on the bases of the immunities provided by eCommerce directive.
I should remark that my arguments here are only meant to address a restricted set of cases, ie cases such that (i) they concern the online distribution of information to the public, (ii) this distribution was originally legitimate, on grounds of freedom of expression and information, though negatively affecting data subjects and (iii) the passage of time has determined a reversal in the balance of the interests at stake. Different considerations may apply to cases where the online processing was illegitimate from the start, or has become illegitimate since the data subject has withdrawn her consent, this being the only legal basis for the processing.


'Privacy, Identification, and Common Law Names' by Adam Candeub in (2016) Florida Law Review (Forthcoming) argues 
The conventional wisdom, reflected in legal policy analysis and landmark Supreme Court cases such as Kyllo and Jones, views technology as privacy’s chief foe. This Article challenges that wisdom, arguing that the law of identification is privacy’s real threat. Particularly in the last decade, legal requirements for identification through government-issued identification cards in virtually every aspect of life — from online purchases to healthcare — have proved fatal to anonymity and privacy. This slow, subtle transformation has rendered a de facto nullity the Constitution’s anonymity protection against compelled identity disclosure. This transformation also has rendered impracticable the traditional, but mostly forgotten, common law rights to use whatever name one wishes, i.e., the right to pseudonymity. The common law name allows a type of anonymity, which, in turn, allows online privacy and privacy in other aspects of life.
This Article argues that the continued vitality of common law name rights, particularly in light of recent First Amendment jurisprudence, establishes a right to pseudonymity — as well as the possibility of increasing privacy. This right includes, in certain circumstances, the ability to demand a government-issued identification under a common law pseudonym. This ability would allow individuals to frustrate regulatory identification regimes and regain some privacy. Beyond these practical implications, this Article engages in a theoretical analysis of the legal mechanisms of identification. Using the classic Calabresi-Melamed property/liability distinction, this Article demonstrates how name governance changed from the common law liability regime to the current government-owned property regime. This shift reflects an important, and hitherto unrecognized, transformation in the legal relationship between the state and citizen.

Privacy Zones

With an article coming out shortly on the new Australian Capital Territory 'privacy zones' regime I was interested to see passage of the Public Health and Wellbeing Amendment (Safe Access Zones) Bill 2015 (Vic).

The Act addresses problems evident in Fertility Control Clinic v Melbourne City Council [2015] VSC 424.

25 November 2015


From IDP Education Ltd v Lejburg Pty Ltd [2015] VSC 650 in relation to the Australian Consumer Law -
24 The defendants’ website relied upon testimonials in the nature of ‘success stories’ to promote the sale of dispute packages. As the evidence revealed, they were wholly fabricated. The defendants did not seek to justify or even explain the testimonials, referring to them as their ‘Achilles heel’.
25 A testimonial from Hans Gerda Ulrich was published with a photograph image. A search of the image revealed the photo to be that of Bernd Jurgen Armando Brandes, a victim of murder and cannibalism in Germany in 2001. A testimonial from Gupta Agate was accompanied by his photo image. A search of the internet revealed that the photograph was that of Jayant Maru, a student at the University of London International Programme, studying BSc Sociology and Law. The photograph of Sun Lei, who provided another testimonial, was that of an actor, Song Seung Hun. The photograph of Amee Krishnamurthy appears to be that of another person known as Aparna Krishnamurthy from Bangalore. The photograph of Wang Siwen, who provided a testimonial, appears to be that of Janlyn Kor. The photograph of Wang Wing, who provided a testimonial, appears to be that of a Japanese woman taken by photographer, Cedric Bertrand. The photograph of Gao Wuan, who provided a testimonial, appears to be that of Celestine Lee, who works with MMR Solutions in Singapore in the financial services industry.

Criminal Law Theory

'International Criminal Law: Theory All Over the Place' by Sarah Nouwen in Oxford Handbook of the Theory of International Law (Forthcoming) comments
Written for the forthcoming Oxford Handbook of the Theory of International Law, this chapter analyses the role of ‘theory’ in the field of international criminal law. It finds theory in international criminal law all over the place: theory is almost irrelevant whilst also highly influential; it is both explicated and covered up; it is developed but also immature. However, it is not just that the state of theory is all over the place; there is no shared understanding of what ‘theory’ in, or of, international criminal law refers to.
Theorising the concept of theory itself, the chapter identifies at least four types of ‘theories’ in international criminal law: (1) ‘factual theories’ (theories of a case); (2) ‘operational theories’ (mental schemes that the field employs in its operations, for instance to organise modes of liability, systematise crimes, or classify sentences); (3) ‘foundational theories’ (systems of ideas about the origins, essence and rationales of the field); and (4) ‘external theories’ (theories that try to make sense of international criminal law as a phenomenon, and study the meaning and effects of the field as a whole beyond its stated objectives, usually from a perspective external to international criminal law).
Theorising international criminal law is not exclusive to scholars or practitioners: international criminal law is also ‘theorised’ by millions of people who, without considering themselves to be ‘theorists’ or ever using the word ‘theory’, try to make sense of international criminal law as they encounter it in their daily lives. As a result, in addition to the axis along which we find factual, operational, foundational and external theories, we can also identify a further axis, with ‘official’ and ‘popular’ theories at its ends.
It is usually when the different types of theories in international criminal law are considered in light of each other that theoretical weaknesses are revealed and, on that ground, the field is labelled as ‘under-theorised’. Perhaps the greatest disconnect is between the official and the popular theories. Tribunals increasingly pay attention to ensuring that the official theories (in particular, the foundational theories) inform the general public’s views, especially in countries where international criminal tribunals intervene. Far less attention, however, is being given to ensuring that popular theories are fed back into the official theories, which in fact have much to gain from connecting with the day-to-day experience of international criminal law. However, for that to happen, official theories of international criminal law must first recognise popular theories as valuable.