29 May 2017


'3D bioprinting – An Ethical, Legal and Social Aspects (ELSA) framework' by S. Vijayavenkataraman, W.F. Lu and J.Y.H. Fuh in (2016) 1-2 Biprinting 11–21 comments
3D printing is one of the most innovative technologies in the current era, while 3D bioprinting is revolutionizing the medical technology industry. Bioprinting technology could help overcome the limitations of the current tissue engineering methods, including the problem of longer waiting times for treatment (especially with organ transplants). While fighting infectious diseases had been the main focus of medicine in the past, dealing with the consequences of a predominantly ageing population will be the priority in the future and bioprinting is a promising technology to tackle this challenge effectively. Bioprinting will not only cater the needs of ageing population but also in the field of paediatrics, where the bioprinted tissue or organ should possess the capability to grow with the patient. As researchers around the world are working on 3D bioprinting of tissues and organs, companies are burgeoning all over, making and marketing new bioprinters. While the research and commercialization are moving at such a rapid pace, the issues surrounding the technology, in terms of ethics, policies, regulations and social acceptance, are not addressed in commensurate. Identifying the ELSA (Ethical Legal and Social Aspects) concerns of this technology at an early stage is not only part of our social responsibility but also in the interest of the future of the technology itself. This paper reviews and foresees these challenges with pragmatism, thereby creating awareness to the researchers and policy makers and to urge a positive course of action in the foreseeable future. The significance of this work will be to address a broad audience, associated with this technology, from scientists to businessmen, engineers to clinicians, laymen to lawmakers. A ‘complete’ policy approach for this technology is recommended rather than a ‘piecemeal’ approach of the various constituents of this technology. An effective course of action will be to setup a multi-disciplinary international panel to work on the policy framework, which will look in to both ‘hard’ and ‘soft’ impacts of 3D bioprinting, the associated ethical challenges, legal measures including patenting and effective controls to prevent the misuse, as well as the social aspects encompassing the cultural and religious differences which accounts for the success of this technology. Setting up national level panels to assess the risk-benefit analysis, taking into consideration the cultural and religious view of its population and other legal and social aspects, might be a good starting point.

24 May 2017


‘Mental disorders among college students in the World Health Organization World Mental Health Surveys’ by R. P. Auerbach, J. Alonso, W. G. Axinn, P. Cuijpers, D. D. Ebert, J. G. Green, I. Hwang11,R. C. Kessler, H. Liu, P. Mortier, M. K. Nock, S. Pinder-Amaker, N. A. Sampson,S. Aguilar-Gaxiola, A. Al-Hamzawi, L. H. Andrade, C. Benjet, J. M. Caldas-de-Almeida, K. Demyttenaere, S. Florescu, G. de Girolamo, O. Gureje, J. M. Haro, E. G. Karam, A. Kiejna, V. Kovess-Masfety, S. Lee, J. J. McGrath, S.O’Neill, B.-E. Pennell, K. Scott, M. ten Have, Y. Torres, A. M. Zaslavsky, Z. Zarkov and R. Bruffaerts in (2016) 46 Psychological Medicine 2955–2970 comments
Although mental disorders are significant predictors of educational attainment throughout the entire educational career, most research on mental disorders among students has focused on the primary and secondary school years. The World Health Organization World Mental Health Surveys were used to examine the associations of mental disorders with college entry and attrition by comparing college students (n= 1572) and non-students in the same age range(18–22 years; n= 4178), including non-students who recently left college without graduating (n= 702) based on surveys in 21countries (four low/lower-middle income, five upper-middle-income, one lower-middle or upper-middle at the times of two different surveys, and 11 high income). Lifetime and 12-month prevalence and age-of-onset of DSM-IV anxiety, mood, behavioral and substance disorders were assessed with the Composite International Diagnostic Interview (CIDI). One-fifth (20.3%) of college students had 12-month DSM-IV/CIDI disorders; 83.1% of these cases had pre-matriculation onsets. Disorders with pre-matriculation onsets were more important than those with post-matriculation onsets in predicting subsequent college attrition, with substance disorders and, among women, major depression the most important such disorders. Only 16.4% of students with 12-month disorders received any 12-month healthcare treatment for their mental disorders. Mental disorders are common among college students, have onsets that mostly occur prior to college entry, in the case of pre-matriculation disorders are associated with college attrition, and are typically untreated. Detection and effective treatment of these disorders early in the college career might reduce attrition and improve educational and psychosocial functioning.
 The authors state that
Although prevalence (Costello et al.2005; Merikangas et al. 2009) and treatment (Fazel et al. 2014a,b) of mental disorders among elementary and secondary school students has been the subject of considerable attention, less is known about mental disorder prevalence or treatment among college students other than in the USA (Eisenberg et al. 2007; Blancoet al. 2008; Choet al. 2015; Kendler et al. 2015; Mojtabaiet al. 2015). We know somewhat more about the associations of early-onset mental disorders with significant reductions in subsequent educational attainment (Kessler et al.1995; Fergusson & Horwood,1998; Johnson et al.1999;Miechet al.1999; Woodward & Fergusson, 2001; Fergusson & Woodward,2002; Fletcher,2008; Lee et al. 2009; Mojtabai et al.2015), but this work is limited by either being based on small restricted samples or by being subject to long-term recall bias. Given the importance of an educated workforce for the human capital potential of a country, it would be valuable to know more about five questions. First, what is the prevalence of mental disorders among college students? Second, what proportion of those disorders had onsets prior to college entry? Third, to what extent are disorders with pre-matriculation onsets associated with college entry? Fourth, what is the relative importance of disorder with pre-matriculation and post-matriculation onsets in predicting college attrition? Fifth, what proportion of college students with mental disorders receives treatment? We address these five questions using data from community epidemiological surveys carried out in 21different countries in the World Health Organization (WHO) World Mental Health (WMH) Survey Initiative.

23 May 2017

Telco Access

The Commonwealth Ombudsman's report Telecommunications (Interception and Access) Act 1979 — Commonwealth Ombudsman’s monitoring of agency access to stored communications and telecommunications data—Report for 2015-16 presents the results of inspections conducted by the Commonwealth Ombudsman under s 186B of the Telecommunications (Interception and Access) Act 1979 (Cth) from 1 July 2015 to 30 June 2016.

Under the Act, 20 specified law enforcement agencies are able to lawfully access individual’s telecommunications data and/or stored communications when investigating certain offences.

The report states
Telecommunications data, or ‘metadata’, is information about a communication. Metadata does not include the contents of a communication. In the example of a phone call, metadata may include the phone numbers of the two parties to the conversation, the duration, date and time of that phone call but not what was said. Any of the 20 specified agencies have the power to authorise access to this information. If, however, an agency wishes to access metadata that will identify a journalist’s information source, the agency must apply to an external issuing authority for a warrant.
Stored communications are communications that have already occurred and are stored on a carrier’s systems. An example of this would be a Short Messaging Service (SMS) that has been sent to or from a person’s mobile phone, and would include the contents of that message. An agency must apply to an external issuing authority for a warrant to access stored communications.
Before a warrant is issued, however, an agency may authorise the ‘preservation’ of a stored communication, to prevent a carrier from destroying the communication before it can be accessed under a warrant.
These are covert and intrusive powers, given to agencies for the purposes of combating crime and protecting our community.
The fact that these powers are exercised covertly is the reason why oversight is so important. A person who has been subject to the powers will not be aware of the fact, and therefore, will not be in a position to make a complaint. Instead, the Ombudsman provides independent oversight by conducting inspections at each agency that has exercised these powers. At these inspections, we assess whether agencies are compliant with legislation and whether they have used these powers in line with the spirit of the legislation.
The purpose of oversight is to provide assurance to Parliament and the wider public that agencies are using these powers as Parliament intended. That is, that these powers are not being abused and that agencies are being held accountable for their use. We report our findings to agencies and the Commonwealth Attorney General, who must then make the report public.
It is reassuring to note that overall, agencies are appropriately exercising their powers to access stored communications and have frameworks in place to ensure appropriate access to metadata. It was evident that agencies are committed to compliance and want to ‘get it right’.
During an inspection, there may be a range of issues identified, including minor administrative errors, instances of serious non-compliance and systemic issues. The Ombudsman may make suggestions for improvement or may make formal recommendations in instances where an issue has not been addressed by the agency, or if it is sufficiently serious. Of the 36 inspections conducted under the Act during 2015-16, only three recommendations were made. Ultimately, all agencies have been responsive to the Ombudsman’s findings.
Access to metadata
Overseeing access to metadata is a new function for the Ombudsman. Agencies have accessed metadata for a number of years without external oversight, which means that each agency already had policies and procedures in place.
As this was the first time agencies would be scrutinised on how they managed and used this power, during 2015-16 the Ombudsman focused on understanding the policies and procedures already in place at each agency. Due to the varying size, structure, nature and complexity of each agency, processes varied. In taking all of this into account, we were able to work with each agency to identify individual strengths and risks for non-compliance with the Act.
As a result of our 2015-16 inspections, we found that agencies had mostly sound policies and procedures in place for accessing metadata. Although each agency faced its own challenges, we identified some common areas of risk for all agencies, including:
ï‚· the level of involvement and support from senior leadership
ï‚· the timeliness and comprehensiveness of training given to those exercising metadata powers
ï‚· the effectiveness of internal communications within an agency to raise awareness of relevant changes and share best practices.
Overall, agencies demonstrated a strong commitment to comply with the Act. Agencies were open to feedback and willing to improve their processes. This was particularly evident in the lead-up to inspections, with significant engagement from most agencies with the Ombudsman.
Access to stored communications
The Ombudsman has performed an oversight role in relation to access to stored communications since 2006. This is the Ombudsman’s first public report on the results of these inspections.
As a result of the 2015-16 inspections, most agencies were compliant with the Act. However, we identified non-compliances in relation to various record keeping provisions and adherence to warrant conditions and restrictions. All agencies were ultimately receptive to our current and previous findings and best practice suggestions.


The national Government has announced its response to the review of the Australian Communications and Media Authority (ACMA), which "found the ACMA has generally performed its regulatory role efficiently and well over the last ten years" but - cue the standard wording - "reform is needed to ensure the ACMA can respond effectively to the challenges of the future communications environment".

 That responsiveness unsurprisingly further aligns ACMA and its mission with dominant market players.

The review was
completed by the Department of Communications and the Arts and supported by a reference group of Australian and international communications and regulatory experts. 
The Government "supports or supports-in-principle all 27 of the recommendations of the review". The reforms will
redesign the governance arrangements for the regulator and provide for greater transparency, accountability and responsiveness of the regulator’s day-to-day and strategic activities. Implementation of these changes is already underway. A restructured governance model will provide for a minimum of five full-time members including the Chair and Deputy Chair, along with clear skill-set and expertise requirements. This will ensure that the ACMA is equipped for the complex task of regulating a dynamic and increasingly integrated communications sector. 
The Minister states
A Ministerial Statement of Expectations will address issues such as transparency, accountability and the nature of the relationship between the ACMA, the Government and industry operators. Providing the ACMA with a clearer description of performance expectations of its regulatory role will support better outcomes for industry and consumers. Regulator principles will also be incorporated in the Statement to provide guidance to the ACMA on how it should approach its regulatory role. 
Recommendations are as follows
 1 That the Australian Communications and Media Authority’s (ACMA) remit cover all the layers of the communications market, including infrastructure, transport, devices, content and applications. Supported
2 That the ACMA’s cybersecurity programs, where appropriate, be transferred, along with staff and funding to the Attorney‑General’s Department (AGD). Supported
3 That the Bureau of Communications and Arts Research assume the lead in taking forward research about the emerging environment and market trends, with the ACMA’s regulatory research program focusing on supporting the effectiveness of regulatory functions and harms that are affecting businesses and consumers. Supported
4 That the Department of Communications and the Arts be responsible for head of delegation roles to key international policy‑setting forums, including the World Radiocommunications Conference, and that clear guidance and negotiating parameters be provided by the Department to heads of delegation. Supported
5 That further work be undertaken to determine whether it may be more efficient for another body, such as the Australian Taxation Office, to undertake the revenue collection functions currently performed by the ACMA. Supported
6 That, within the next 12 months, the ACMA examine whether some or all of the following functions can be referred to industry for self‑regulation, in consultation with relevant industry bodies:
◾Technical Standards
◾Integrated Public Number Database (IPND)
◾Do Not Call Register (DNCR)
◾Action on unsolicited communications, including Spam. The ACMA regularly explore further opportunities for self‑regulation in consultation with industry. Supported
7 That the Department will undertake further work on the potential to expand the ACMA’s remit to include the functions of the Classification Board and Classification Review Board Scheme. Supported
8 That the Interactive Gambling Act 2001 (IG Act) be amended to require the ACMA to:
◾Handle all complaints relating to interactive gambling services and advertisements
◾Conduct the same investigation process irrespective of whether the content is hosted in Australia or overseas
◾Enforce civil penalties for breaches of the Act. Supported
9 That the current institutional arrangements for economic regulation of the communications sector be retained. Supported
10 That cross‑appointment arrangements between the ACMA and the Australian Competition and Consumer Commission (ACCC) be strengthened in order to benefit both ACMA and ACCC decision‑making. Supported
11 That the current institutional arrangements for communications consumer protections be retained. Supported
12 That as a priority as future reform is undertaken, the Government provide the ACMA with a clear set of overarching policy objectives to guide its decision-making. Supported
13 That the commission model of decision-making be retained. Supported
14 That the skill set to be collectively covered by Authority members be outlined in legislation to ensure an appropriate and diverse mix of abilities to respond to the future needs of the ACMA. Supported
15 That all members of the Authority be appointed on a full‑time basis and that the Authority consist of a Chair, a Deputy Chair and at least three other full‑time members. Supported in principle (Government supports full-time Chair, full-time Deputy Chair, three full-time members while retaining flexibility to appoint additional members on a part-time basis)
16 That the existing arrangements are maintained where the Chair is the Accountable Authority with an ability to delegate powers, duties and functions, to the extent permitted by the PGPA Act, to a Chief Executive Officer (CEO). Supported
17 That provision be made in the ACMA Act for the Authority to establish sub‑boards consisting of experts who could provide advice to the Authority or a Division of the Authority on specific areas of activity. The Chair of any such sub‑boards be a member of the Authority but not be the Chair of the Authority. Supported
18 Legislate the following four regulator principles in the ACMA’s enabling legislation, proposed draft:
◾The ACMA have regard to the importance of promoting competition, innovation and efficient investment
◾The ACMA should apply a risk-based approach to regulation, compliance and enforcement activities. Regulatory intervention should be targeted, evidence-based and commensurate with risk
◾The ACMA should implement continuous review of regulation to reduce burden and streamline approaches where the benefits exceed the costs
◾The ACMA should be timely and transparent in its actions and clearly indicate the priorities and objectives which inform its decision-making to regulated entities and the broader public. Supported in principle (rather than legislation, action in Minister’s Statement of Expectations to ACMA)
19 That the Minister provide the ACMA with an annual Statement of Expectations and the ACMA respond by publishing a Statement of Intent outlining how it will seek to deliver on the Government’s expectations. Supported
20 That the Minister provide the ACCC with an annual Statement of Expectations and the ACCC respond by publishing a Statement of Intent outlining how it will seek to deliver on the Government’s expectations. Supported
21 That timeliness of decision‑making be established as a key area of focus and accountability for future cycles of the ACMA’s regulator performance framework and Government consider legislative amendment to support more timely decision-making, where necessary. Supported
22 That the ACMA publish information on the steps it takes to ensure stakeholders have a clear understanding of the relationship between its actions and its compliance and enforcement policy. Supported
23 That the ACMA publish a report to the Minister every two years on initiatives undertaken to identify and reduce regulatory burden on industry and individuals. Supported
24 That the ACMA produce a public report on steps taken to improve the transparency and consistency of its decision-making processes, and that implementation and stakeholder satisfaction be independently assessed by the end of 2017. Supported
25 That it would be timely to review the policy objectives of revenue collection from the communications sector and evaluate whether new business models and OTT services are contributing appropriately. Supported
26 That the ACMA should further analyse its cost base, in light of the proposed function changes, to ensure it is efficiently delivering on its responsibilities and minimising costs to industry. Supported
27 To enable the communications sector to reach its full potential as an enabler of innovation and productivity, the Government commence a coordinated program of regulatory reform to establish a contemporary communications regulatory framework. Supported

20 May 2017


'Fixing Incontestability: The Next Frontier?' by Rebecca Tushnet in (2017) Boston University Journal of Science and Technology Law comments
Incontestability is a nearly unique feature of American trademark law, with a unique American implementation. The concept of incontestability allows a trademark registrant to overcome arguments that a symbol is merely descriptive of features or qualities of the registrant’s goods or services—for example, “Juicy” for apples. Incontestability provides a nearly irrebuttable presumption of trademark meaning, which is a powerful tool for trademark owners. Unfortunately, incontestability is not granted as carefully as its power would counsel. Courts may misunderstand either the prerequisites for, or the meaning of incontestability, allowing trademark claimants to assert rights that they don’t actually have. Incontestability needs clearer signals about what it is and when it is available. In the absence of serious substantive examination of incontestability at the PTO—which seems unlikely to materialize any time soon—changes designed to increase the salience of incontestability’s requirements to filers and to courts could provide some protection against wrongful assertions. Incontestability can only serve the trademark system if it is granted properly and consistently.


'A socialised conceptualisation of individual privacy: a theoretical and empirical study of the notion of the ‘public’ in UK MoPI cases' by David Mead in (2017) Journal of Media Law 1-32 comments
This article conceptualises a more public, more socialised notion of privacy in contrast to the archetype: that my privacy is of interest and value only to me. Doing so has historically left claims to privacy exposed against claims to free speech, with its long pedigree and generally acknowledged wider instrumental role. This article provides a corrective. The first part offers a typology of rationales at one of two meta-levels: privacy as a means to effect assurance or as a means to protect someone’s activities. The second discusses the results of some small-scale empirical doctrinal research: a sample analysis of 27 UK privacy cases looking to identify the judicial ascription of the value of privacy, specifically whether any judges conceptualise privacy as having a more social, or public, value or utility. The results are perhaps not unexpected. Almost exclusively, judges frame their rationales for protecting privacy in purely individualised terms.
Mead concludes
Why does all this matter? I think there are two reasons. The first is a conceptual one. If we are to have newspaper outings of, taking a recent example, MPs such as Keith Vaz, we should be sure the analytical framework is responsive to all the variables, not just to some or, as I would argue, to all of those on one side (freedom of expression) but only to a sample on the other. Second, at a practical level, it matters how cases are argued and resolved and who might claim the benefit of any remedy. Let us take those in turn.
At a conceptual level, if we conceive of privacy as offering wider social utility rather than simply as something of individual value, we can better appreciate that the judicial and policy approach – of private gain against public benefit of free speech – creates a false dichotomy. Ian Leigh and Lawrence Lustgarten wrote about the balance between rights and security in the 1980s and Daniel Solove adopted it in the more specific context of digital privacy and security nearly 20 years later. Rather than being in oppositional tension, protecting privacy may in fact sustain the same sorts of goals that securing protection for free speech might also serve. We see this most obviously when we considered claims to intellectual privacy, to innovative privacy and to facilitative privacy, but insulating privacy allows us to relax before immersing ourselves once more in the public sphere, while coalescing privacy, it was argued above, provides the level playing field necessary for public debate. Viewing the potential harm as connoting something more collective requires the construction of a very different utilitarian calculus. In short, and perhaps counter-intuitively, failing to see that on occasion securing an individual's privacy (that is, not allowing unrestrained publication about someone's private life) might not also lead to a flourishing, rather than a diminution, of free speech constitutes a category error. Privacy and free speech, or elements of each at least, can in fact be the same sides of the coin.
A couple of points flow from that new analytical approach. If privacy is no longer solely an individual but also a social or collective good, does this mean A is or even should be able to waive it? As Jane Bailey put it, in the context of online privacy, especially those victims/subjects of child pornography,
if privacy is, or is becoming, a collective or public good, the weaknesses of policy solutions that establish a property right in personal information or that allow one to waive one’s privacy rights also would become clear. If one individual or a group of individuals waives privacy rights, the level of privacy for all individuals decreases because the value of privacy decreases.
There are two limbs to this. If A really is not bothered by any loss of privacy, what could found B, C and D’s collective right to be aggrieved? Above (in the section ‘The social utility of privacy’), we considered the various social claims that can be made on their behalf. Broadly, even if A feels she has suffered no harm, a strong case can be made that not only are B, C and D impoverished but we all are, or at least there is the potential for us all to be. Put thus, it is not A's right, or not A's right alone, to waive. That thought does not assist in resolving the other difficulty – how can we give practical effect to that collective assertion of harm, especially in the face of A's consent or intransigence? One practical response in the UK setting would be the adjustment of regulatory rules requiring only the affected individual to mount a claim. IPSO requires, for complaints about anything other than accuracy in the Editors' Code, a person to be ‘directly affected’. IMPRESS similarly requires someone to have been personally affected other than for complaints about accuracy where it permits third party complaints. This provides, at best, only a very partial solution. It is one thing to confer standing on third parties and quite another to craft a remedy that adequately responds to those collective, mutual interests. The following (rather inelegantly drafted) sample correction avails a flavour of what might be conveyed.
On 1 January, we published an item indicating that A had done X [in circumstances Y]. While A did not contact us to complain, The Daily News acknowledges that in publishing that item, we acted improperly. That item might have led many others to believe that doing X [in circumstances Y] was a proper subject for a newspaper to report on. In doing so, we may have dissuaded others from doing or even from trying to do X. The Daily News accepts that doing X is or has the potential to be a socially useful activity, contributing to [β and δ] and thus has long term or wider benefits for us all.
Remaining with our conceptual strand, James Nehf identifies two further issues that flow from framing privacy as implicating only individualised utility. First, those not affected, or rather those perceiving themselves as not being affected, may disengage from the debate. This is, as Solove points out, a general response in the surveillance and security debate – I’ve got nothing to hide, so what’s the problem?  Additionally, and this flows from its non-absolute nature requiring privacy to compete with other rights and social interests, he notes that ‘the influence of interest group politics could not be overcome’. He adverts to the changed frame within which we now debate environmental harms – as something that now no longer effects simply the neighbour onto whose land waste spills but as a general societal problem calling for a public collective regulatory response.
If we turn back to the practical realisation of our expanded notion of privacy, Part IV showed that there was no evidence of wider social utility in court judgments (though the survey has not so far considered how cases were presented and argued by counsel). It is impossible to determine if appeals to social utility would have affected the outcome in any one case. It would be easy enough to locate claims to a more socially responsive conception of privacy within the current doctrinal framework. Even given the very clear contextual steer in Murray by the Master of the Rolls  (and endorsed by the Supreme Court in In re JR 38), the first stage – whether or not there was a reasonable expectation – while objective, has as its focus the effect on the claimant, not the effect on wider society. Nothing though would seem to prevent it being argued at the second stage of the ultimate balancing test that it is not simply the comparative importance to the claimant that should be on one side of the equation but the social good that protecting privacy could effect or would be capable of effecting.
While the appropriateness of the balancing test is contested at a normative level, primarily because of the difficulty, indeed inherent impossibility, of attributing value to and then weighing against each other two things that are both immeasurable and incommensurable, this paper takes as a given its continued traction.  This is not the place to rehearse, let alone resolve that argument. That said, while re-framing privacy, in collective terms, would complicate that balancing exercise, by pairing public interest expression with of public interest privacy, we might explore this a little more before ending. While, clearly, it would be impossible to prove or even quantify the social utility of preventing a particular privacy-invading publication, that should not matter. The claim that a free press contributes to democratic self-governance has never been put to proof; its truth has now simply been asserted so long and so vociferously that it is self-evident – judicial notice is simply taken of this now undisputed fact. Further, it is not being asserted that all invasions of A's privacy would implicate a more collective notion of privacy. This though is, or should be true, for free speech (on the other side of the equation) – not all speech goes to enhancing democracy or offering different versions of truth in the market place for acceptance or rejection; it is hard to see how tittle tattle can ever do so.  Our more socialised conception of privacy entails rejection of the monolithicism of free speech and, now, of privacy and calls for a more nuanced judicial analysis of both sides, evaluating more precisely the exact harms alleged to be suffered if the material is (not) published. Of course, to repeat the point made above, what we are dealing with on the privacy side is more likely an inchoate harm but this is likely as true of many claims made about the collective harms, or gains, of free speech.
In all this, it would be critical properly to frame the various interests at play and in tension. This might be the wider social utility or the countervailing public interest. Tugendhat J was alert to the difficulties in Green Corns. There, the issue – to remind ourselves – was whether or not to restrain a local paper publishing certain details of a planned children's care home. He accepted that there was no public interest properly defined at all in publishing the information that was subject to restraint. 
The public interest was in how (perhaps by whom) the children were to be cared for. That was not the material the paper sought to publish, which was the location of the home. Essentially, what was being set up in opposition, he continued, was a series of private interests in, for example, house values which the paper sought to aggregate and to wrap up collectively as a public interest. This goes to an earlier discussion: that there is a difference between a common or collective public interest, in Regan's (n 2) terms, and aggregative or cumulative private interests.
In conclusion, one matter should be made clear. This paper is not arguing that privacy should always or even invariably trump free speech: we should not always have a right to know about the love child of a leading politician. There will quite properly be times – many and frequent perhaps – as a matter both of plain doctrine and of policy and theory – when the interest in protecting someone's privacy is outweighed by the greater interest in publication, even where there might also be some consequent social or collective (future) loss if the private facts become publicly known. It is making the much simpler point. That it is time we reconceptualised privacy and its instrumental possibilities, and thus reconfigured the balancing matrix, avoiding (in footballing terms) free speech always being the team able to play at home.

12 May 2017


'Privacy in Automation: An Appraisal of the Emerging Australian Approach' by Angela Daly in Computer Law & Security Review offers
an initial appraisal of the emerging Australian approach to applying privacy and data protection laws to automated technologies. These laws and the general context in which they operate will be explained, with appropriate comparisons made to the European Union frameworks. In order to examine their specific application vis-à-vis automated technologies, three case studies - Automated facial recognition technologies (AFRT), unmanned aerial vehicles (UAVs – better known as ‘drones’) and autonomous vehicles (or ‘driverless cars’) – are selected to examine the extent to which existing privacy and data protection laws, and their application, can be considered adequate to address privacy and data protection risks that these technologies bring. These case studies evidence existing deficiencies with privacy protection in Australia and the inadequacy of recent reform processes, demonstrating that Australian data privacy laws are not well placed to protect individuals’ rights vis-a-vis automated technologies.