'The New American Privacy'

'The New American Privacy' by Richard Peltz-Steele in (2013) 44(2) Georgetown Journal of International Law argues that

Conventional wisdom paints U.S. and European approaches to privacy at irreconcilable odds. But that portrayal overlooks a more nuanced reality of privacy in American law. The free speech imperative of U.S. constitutional law since the civil rights movement shows signs of tarnish. And in areas of law that have escaped constitutionalization, such as fair-use copyright and the freedom of information, developing personality norms resemble European-style balancing. Recent academic and political initiatives on privacy in the United States emphasize subject control and contextual analysis, reflecting popular thinking not so different after all from that which animates Europe’s 1995 directive and 2012 proposed regulation. For all the handwringing in the United States over encroachment by anti-libertarian EU regulation, a new American privacy is already on the rise.

Peltz-Steele comments that -

Thinking about privacy is in vogue now in academic circles around the world. Unexceptionally, U.S. scholars and advocates have been eager to systematize diffuse musings and reconstruct privacy as rational and sturdy scaffolding for law and regulation. Exceptionally, U.S. policymakers must fit this reconstructed privacy into an existing superstructure of civil and economic liberties. That superstructure has been molded and in places made rigid by the same social developments that shaped U.S. constitutional law in the twentieth century. The problem is more one of legal architecture than of public will, and U.S. researchers such as Helen Nissenbaum and Daniel Solove are laying the groundwork to tackle the project.

Professor Solove posited a sixteen-category taxonomy of information activities that can harm data subjects. He theorized that if privacy harms can be clearly articulated, then lawmakers can work back to define and disincentivize the information practices that result in those harms. Among the potentially injurious activities, and key areas of policy discussion in the information age, are oft hand-in-hand surveillance and secondary use. Both were at issue, for example, in the recent uproar over Google’s privacy policy revision, by which Google dropped information-sharing barriers across its various platforms, such as search engine, electronic mail, and location mapping. This “surveillance” of user activity allows Google to construct profiles of its users with a level of intimate familiarity that makes some uncomfortable. Searches for information about sexual fetishes or venereal diseases are not the kind of data a user might wish to have associated with her or his personal identity and home and electronic addresses.

Amplifying qualms over surveillance is the fear of secondary use (and tertiary use, etc.), that is, the use of information for purposes unrelated to its initial harvesting. A user might not object to Google’s use of location mapping to enhance search results for a “florist.” But the user might be surprised and uncomfortable when an advertising bot a week later proposes a dating service upon the perceptive gamble that the twenty-year-old who sought a florist in August would soon be in the market for a new romantic partner. The situation is not much improved by knowing that the aforementioned intimate details are part of the same data profile. Google itself is not in the data brokering business at present, but surveillance and secondary use may result in painful and invasive privacy violations with real social and financial consequences when intimate personal profiles are sold wholesale for unrestricted downstream applications—say, to a potential employer or insurer. Professor Nissenbaum posited a more elaborate theory of “contextual integrity” that examines the context in which privacy is implicated relative to the norms that animate the information use. Her complex and thoughtful taxonomy defies easy summary. To oversimplify nevertheless, she outlined four constructs that define context: the role of the actor in context, such as journalist; the activity in context, such as news reporting; the social norms that govern in the context, such as the use of quotation marks to indicate a subject’s own words; and the values that operate in the context, such as objectivity. Nissenbaum further outlined four parameters of informational norms: context, such as a newspaper’s front page; actors, that is, the identity of the information senders, the receiver, and the data subject; attributes of the information, such as the physical appearance of a data subject; and most importantly, transmission principles, including customary and articulated constraints on information transmission, such as a reporter’s promise of non-attribution.

The analytical trigger in the Nissenbaum approach is a change in the context of information use, as determined by a change in the constructs that define context. A change—say the journalist decides to use a deep-background interview with a corporate whistleblower to put words in the mouth of a fictional character in a screenplay—requires that the new use be tested for consistency with the original parameters of informational norms. The deep-background agreement, a transmission principle in the initial disclosure of information, contemplated no use of the data subject’s words, regardless of the speaker. For that and various other reasons, contextual integrity is compromised. Lawmakers may choose to define an invasion of privacy according to such a compromise of contextual integrity.

Solove’s and Nissenbaum’s creative approaches point to similar results because both are merely tools to articulate existing value systems. A public library’s database of patron checkouts furthers free intellectual inquiry and efficient management of a shared resource. Thus transfer of personal information for national security investigations (surveillance), or sale of data for commercial profiling (secondary use), violates privacy rights, whether framed as an aversion of injurious consequence or as a compromise of contextual integrity. Within any one cultural tradition, be it American, French, or another, the proper employment of each approach aids in the detection of a violation of social norms. The violation then may or may not be used to demarcate a violation of law or civil rights.

Crucially, Solove and Nissenbaum both reject what Solove termed “the secrecy paradigm” in favor of a contextual approach. This divergence from convention exemplifies the resemblance of these approaches to those of the DPD and proposed regulation in the EU. The secrecy paradigm, which is a controlling norm in trade secret law, posits that only secrets are legally protectable; information once disclosed is fair game in the public sphere. The DPD similarly rejected the deceptively simple dichotomy of the secrecy paradigm by persisting in the regulation of data use after a subject’s voluntary disclosure. The context of initial disclosure and the ongoing contexts of information use, including downstream injury, are defining features of both Solove’s and Nissenbaum’s analyses. Just as the DPD newly emphasized disclosure and consent for information practices when persons remain identifiable, Nissenbaum posited that factors such as notice, consent, and redaction may serve to maintain contextual integrity. In toughening the requirement of explicit consent and allowing a sort of consent revocation through the device of the right to be forgotten, the proposed regulation is only further consistent with the concepts of harm-aversion and contextual integrity.

Solove acknowledged that an approach to privacy predicated on extant values might require that the Supreme Court reconsider its commitment to the secrecy paradigm —which it might. In present jurisprudence under the U.S. Fourth Amendment, the font of constitutional privacy, the government can dip deeply into personal information held by third parties, such as banks and telephone companies, because the data are regarded as already disclosed. The concept carries over into the civil context where, for example, the secrecy paradigm is expressed through the tortious invasion of privacy requirement that information have been guarded as secret (like in trade secret law). Voluntary disclosure furthermore may manifest in tort through a defense of consent (to intentional torts) or comparative fault (to negligence torts). But in a recent case in which the Court, on narrow grounds, reproved the covert installation of a GPS tracking device, Justice Sotomayor hinted that a reconsideration of the dichotomy might be in the cards. The decision in general confirmed the Court’s willingness to adapt the Fourth Amendment to new technologies, and GPS tracking is plainly “surveillance” in Solove’s terms. Writing in concurrence, Justice Sotomayor acknowledged that GPS tracking can accumulate “a wealth of detail about [a subject’s] familial, political, professional, religious, and sexual associations,” and that such power is “susceptible to abuse” — which is to say, compromised contextual integrity may result in injury. She concluded: “[I]t may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.”

Magic Salves and Consumer Protection

Posts in this blog have noted concerns - eg here and here - regarding the NSW AntiVaccination Network (AVN), a small group of people whose enthusiasm seems to be inversely proportional to their grasp of hard science and who  - in my opinion - are somewhat indifferent to the harm potentially caused by their hostility to vaccination.

The AVN site is full of treats. It features a statement by controversial vitamin entrepreneur Matthias Rath and what a skeptic might consider to be other absurdities. Apparently the 1939-45 War was attributable to drug and oil cartels, Mr Hitler being much less important than the evil vendors of conventional medicine. (One of Rath's sites helpfully explains that "Wikipedia is a modern day propaganda tool for the status quo, namely the Oil and Drug Cartel" and that Jimmy Wales & Co are simply front men for the forces of darkness. Oh dear!)

Presumably it is an advance that in 2013 we are apparently relying on Big Pharma for causation rather than relying on the Illuminati, the Jesuits, the Bogomils, the Templars, women who take black cats for joyrides on broomsticks, the Rothschilds and other folk devils who have been blamed for revolutions, droughts, floods, earthquakes, financial panics, sour milk and toast falling butter-side down over the past 2,000 years!

The site has also featured an advertisement for a "safe, effective, natural" 'black salve' that supposedly has useful properties regarding the treatment of cancer and has been "used for over 2,000 years".

Given the irreverence of this post I will confine myself to noting that 'natural' is not the therapeutic be all and end all. Arsenic, lead, thallium, cobra venom and the toxins of the red back spider or blue-ringed octopus are all definitely quite 'natural' but generally less beneficial than the 'unnatural' vaccines that have saved millions of lives over the past century. Deadly nightshade, water hemlock, aconite and oleander are oh so very natural but perhaps not what you'd want mixed in with your muesli or forming part of the salad. These days we have a better way of ending an unhappy relationship: reach for the Family Law Act 1975 (Cth) rather than the poisoner's handbook or old wives' pharmacopeia!

The salve advertisement has attracted the attention of health advocates and resulted in action by the TGA, which has now issued a mandatory take-down notice under the Therapeutic Goods Regulations 1990 and associated Therapeutics Goods Advertising Code. That action is of interest for Australian competition/consumer law and health law students.

The notice includes the statement that

The Advertiser was not able to produce valid supporting evidence in relation to their claims, nor was there any referenced or highlighted medical evidence in the advertisement to support the representations. The advertisement promoted 'black salve' as a 'safe, effective, natural remedy ... used for over 2,000 years to treat skin cancers and other cancerous conditions, leading to a total remission of the disease.' The Delegate considered that, based on these statements, consumers would be entitled to expect that 'black salve' will cure them of cancer when, in fact, there is no credible, reliable clinical or scientific evidence to demonstrate that the product is effective in the treatment of any cancer. The Delegate found the advertisement was unverified, was not correct and raised unrealistic and unwarranted expectations of product effectiveness therefore in breach of sections 4(1)(b) and 4(2)(a) of the Code.

Breach of sections 4(2)(b) and 4(2)(c) of the Code

The 'black salve' product was advertised both as a cure for cancer and as a legitimate alternative to 'Aldara' a conventional medicine. It was the Delegate's view that this comparison could mislead consumers into incorrectly believing that 'black salve' was a natural safe alternative which was more effective than conventional medicines and that the advertisement sought to give credibility to 'black salve' over clinically proven alternatives. The Delegate considered that statements made in the advertisement could lead to consumers inappropriately relying on 'black salve' to treat skin cancer to the exclusion of clinically proven conventional medicine and that the suggestion that 'black salve' will 'help people cure their own cancers' may lead to self-diagnosis and a failure to seek out proper medical attention for a potentially fatal disease. The Delegate found the advertisement was likely to lead to inappropriate treatment of a potentially serious disease and was misleading, therefore in breach of sections 4(2)(b) and 4(2)(c) of the Code.

Breach of sections 4(2)(d) and 4(2)(e) of the Code

It was the Delegate's view that the advertisement portrayed 'black salve' as a cure for cancer which would exploit a person's vulnerability when seeking an alternative to conventional cancer treatments, especially without diagnosis. The advertisement used language that, in the Delegate's view, would bring about fear or distress by making people fearful of the consequences if they did not use 'black salve' or, alternatively, if they relied on conventional medicine for treatment. The Delegate also found that promoting 'black salve' as a guaranteed safe alternative exploited the lack of knowledge that consumers have about the treatment of cancer and the different treatment modalities that may be required depending on the type of cancer diagnosis. For these reasons the Delegate considered that the advertisement breached sections 4(2)(d) and 4(2)(e) of the Code.

Breach of section 4(2)(f) of the Code

It was the Delegate's opinion that it would be inappropriate for consumers to rely on 'black salve' as a treatment for cancer (diagnosed or not) in preference to, or to the exclusion of, other conventional treatments. As there were no instructions surrounding the use of 'black salve' in the advertisement it was the Delegate's view that misdiagnosis by a consumer would cause greater harm to themselves and that by not seeking appropriate medical help, incorrect application of "black salve" could cause extensive, irreparable damage to their skin. The Delegate found the advertisement was likely to encourage inappropriate or excessive use of the product and therefore was in breach of section 4(2)(f) of the Code.

Breach of sections 4(2)(g) and 4(2)(h) of the Code

The Delegate found that the advertisement encouraged those consumers who may have eschewed conventional medical practice and who were seeking alternative curative measures to use the 'black salve' product. In the absence of any information to the contrary the use of the phrase 'total remission' was in the Delegate's view representing this product as a guaranteed treatment for cancer and that it would be effective in all cases, and was therefore in breach of sections 4(2)(g) and 4(2)(h) of the Code.

Breach of section 4(2)(i) of the Code

The advertisement promoted 'black salve' as a 'safe, effective, natural remedy' and that it was 'time-tested'. The advertisement does not mention that 'black salve' can cause harm or has any side effects, nor did it advise the consumer that 'black salve' can burn the skin (which may require medical attention) and can cause permanent scarring. The Delegate found therefore the advertisement to be in breach of section 4(2)(i) of the Code because it promoted the product as safe, without side effects and that no harm could come from its use.

Breach of section 4(5) of the Code

The advertisement compared 'black salve' with an 'S4' 'Prescription Only' medicine Aldara, stating that Aldara was 'dangerous and ineffective', that it caused 'serious systemic and fatal reactions' and was 'known to CAUSE cancer'. The advertisement stated that the author of the DVD entitled 'One Answer to Cancer' was 'almost killed by Aldara' which is a 'dreadful poison' that has 'ruined or cut (lives) short'. This promotion of 'black salve' was in the Delegate's view, misleading in comparison with the recognised conventional medicine Aldara because it stated that it was both harmful and ineffective in comparison with "black salve" and the advertisement therefore was in breach of section 4(5) of the Code.

The AVN site is accordingly to prominently feature the following retraction -

An advertisement promoting illegal therapeutic goods under the name "Black Salve", which we published on this website, should not have been published. In publishing the advertisement, we misled and abused the trust of consumers.

In the advertisement we unlawfully made claims that Black Salve is safe, and that it can be used as an effective treatment for cancers including skin cancer. We also claimed that cancer medicines are harmful and cause cancer, and are ineffectual.

A complaint about the advertisement was recently upheld by the Complaints Resolution Panel. We provided no evidence whatsoever to support the claims we made, and the Panel found that the claims were unlawful, misleading, and unverified and breached the Therapeutic Goods Advertising Code (Code).

The full text of the Panel's determination can be found at: www.tgacrp.com.au/complaints

The delegate of the Secretary for the purposes of regulation 9 of the Therapeutic Goods Regulations 1990 also found that the claims and representation in the advertisement were unlawful, inaccurate and misleading in breach of the Code.

The attention of consumers is directed to the safety information from the Therapeutic Goods Administration at: Black salve, red salve and cansema on the TGA website.

Glass, Darkly

Members of the US Congress Privacy Caucus have addressed a 'please explain' letter to Google [PDF] regarding Google Glass, with a formal reply expected no later than 14 June.

Criminal Intelligence Sharing

The Australian Parliamentary Joint Committee on Law Enforcement has released the 122 page report of its Inquiry into the gathering and use of criminal intelligence.

The report states that -

As serious and organised crime in Australia exploits the legislative, structural and resource gaps in law enforcement, it demands a nationally consistent approach. It also requires strategic investigative methodologies focused on intelligence-led investigations as well as identifying sector vulnerabilities open to exploitation in order to prevent and disrupt serious and organised crime rather than relying on reactive policing.

As the national criminal intelligence body, the central function of the Australian Crime Commission (ACC) is to collect, analysis and disseminate criminal intelligence in relation to nationally significant organised crime. Its modus operandi is to work in partnership with law enforcement, national security agencies, government and industry to deliver advanced criminal intelligence. Recent amendments to the Australian Crime Commission Act 2002 have allowed for greater dissemination of ACC information to partner agencies, government and the private sector.

No warnings from the Committee about the problematics of sharing with the private sector.

The report goes on  to comment that -

However, evidence to the committee suggests that the intention behind these new arrangements, which is to provide for a more comprehensive response to organised crime, cannot be fully realised until existing limitations, challenges and hurdles within the current criminal intelligence framework are addressed.

This inquiry has brought to light serious legislative, technological, resource and cultural impediments to the flow of intelligence which produce unequal intelligence holdings, an incomplete picture of criminal threats and undermine stakeholder confidence. Some law enforcement agencies hold reservations about sharing their own information and seem not to recognise the value added to that information when converted into intelligence and returned to them. Such concerns are exacerbated by the absence of a common approach to collecting, collating, analysing and disseminating criminal intelligence underpinning a common ethos. Efforts to establish an interoperable criminal intelligence system capable of producing a comprehensive national picture of organised crime are hindered for these reasons.

The report goes on to state that the Australian Criminal Intelligence Model (ACIM) views "criminal intelligence as a national asset which can be collected once and used often", seeking "to establish an interoperable system for the free flow of criminal intelligence based on consistent standards, processes and protocols".

The ACIM brings together for the first time the siloed domains of serious and organised crime, national security, and policing and community safety. By bringing all agencies involved in each of the respective domains under the one model and enabling them to draw on intelligence across all three domains, the initiative seeks to provide for a safer Australia. The efficacy of a centralised multi-sector criminal intelligence system was most recently highlighted in relation to the ongoing investigation into the Boston explosions of 16 April 2013. Investigations into criminal acts of this nature extend beyond any single domain or agency as they encompass matters of national security and counter-terrorism, organised crime as well as policing and community safety. As contemporary crimes can traverse the three domains, contemporary law enforcement must also be able to traverse available intelligence across the respective domains.

The ACIM envisages an intelligence partnership whereby law enforcement agencies collect and contribute intelligence to the national holdings. This partnership is complemented by various national strategic frameworks and plans including the Commonwealth Organised Crime Strategic Framework which underscore the importance of an intelligence-led multi-agency response to organised crime. In this report, the committee considers some of the key challenges to establishing the ACIM. It examines the current criminal intelligence context and stakeholders. It explores the vision and principles that underpin the ACIM and highlights some of the key considerations before the ACC in establishing an interoperable system that all Commonwealth, state and territory law enforcement agencies contribute to and benefit from. Conceptualising intelligence as a national asset raised questions regarding controls on information sharing and access, including overall responsibility for and ownership of the intelligence. In this report, the committee makes a number of recommendations to ensure that all agencies are accountable for information and intelligence contributed to the national holding while ensuring that there are strong accountability and oversight arrangements as well as standards in relation to intelligence gathering and sharing.

The Committee's recommendations are as follows -

R 1 The committee recommends that the Australian Crime Commission and the Australian Federal Police provide it with a detailed report on the findings and recommendations of the Australian Criminal Intelligence Database (ACID) and Australian Law Enforcement Intelligence Network (ALEIN) scoping study, National Information and Intelligence Needs Analysis, and assessment of the AFP's Project Spectrum. The report should provide details on:

• the recommendations regarding ACID and ALEIN and how they will be implemented including a timeframe;

• the outcome of the National Information and Intelligence Needs Analysis;

• the assessment of the AFP's Spectrum Program; and

• how the recommendations of each respective review and assessment will inform the development of the Australian Criminal Intelligence Model and maximise interoperability between existing databases and systems.

R 2   ... that the Australian Crime Commission (ACC) as the lead agency on criminal intelligence and the ACIM provide it with a report on how the ACC will ensure that all current information technology systems are fully utilised and accessible under the ACIM.

R 3 ... that the Australian Criminal Intelligence Forum (ACIF) develop for the endorsement of all 17 ACIM agencies an information management strategy. As a first step in developing the strategy, the ACIF should define key terms including a clear, working definition of criminal intelligence and provide descriptions of relevant concepts and processes.

R 4 ... that the Attorney-General's Department conduct a review of disclosure of information procedures under Freedom of Information (FOI). The review should provide recommendations on any legislative, administrative or policy reforms required to achieve a consistent approach to FOI requests for information under the ACIM.

R 5 ... that the Attorney-General's Department review law enforcement data security management practices, standards, principles and safeguards. The review should provide recommendations on:

• standards and uniform principles for the security and integrity of information contributed to the ACIM. These standards should detail how ACIM agencies are to hold, protect, secure and manage ACIM intelligence; and

• an accountability and oversight mechanism to monitor compliance with the uniform standards and principles.

R 6  ... the establishment of a national repository for criminal intelligence as part of the Australian Criminal Intelligence Model.

R 7 ... that a cost-benefit analysis be undertaken in relation to the options for a national repository. This analysis should take into consideration:

• the determining factors detailed in Chapter 6 of this report;

• the need to complement existing information technology initiatives such as the AFP's Spectrum Program;

• the need for interoperability and complementarity with current databases including the National Criminal Investigation DNA Database and the National Automated Fingerprint Identification System; and

• the intelligence sharing model used by the Australian intelligence community.

R 8  ... the standardisation of security clearance processes. To this end, the committee strongly encourages all state and territory jurisdictions to align their security clearance processes with that of the Australian Government Security Vetting Agency.

R 9 ... that the Australian Crime Commission in collaboration with the Attorney-General's Department establish as part of a licencing requirement to the national repository or other administrative arrangement, a formal agreement which requires signatory agencies to declare a commitment to contribute information and intelligence to the national holdings.

R 10  ... the establishment of an accountability and oversight regime to ensure that agencies are accountable for their contribution to the national holdings. As part of this regime, the Senior Officers' Group on Organised Crime (SOG on OC) should provide an annual oversight report to the Ministerial Council for Police and Emergency Management—Police and Standing Committee of Attorneys-General on the contribution of each respective agency for review and remedial action where required.

R 11  ... that the feasibility of extending the jurisdiction of the Australian Commission for Law Enforcement Integrity (ACLEI) to include oversight of the Australian Securities & Investments Commission, the Attorney-General's Department and the Australian Taxation Office be referred to the Parliamentary Joint Committee on ACLEI for inquiry and report.

R 12   ... that the ACC provide a detailed account of progress towards the ACIM in its annual reports.

Professoriat

In National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451 the Federal Court has warned academic employers against using sham redundancies to get "rid of an undesired employee".

Justice Gray found that RMIT took unlawful adverse action when it dismissed Professor Judith Bessant who fell out with her head of school - an increasingly common experience. The Court rejected RMIT's argument that the Youth Studies & Sociology professor was made her redundant for financial reasons. The Court fined RMIT $37,000 and ordered it to reinstate Bessant. Gray J did not order damages, saying the judgment would vindicate her.

In finding RMIT breached  Fair Work Act 2009 (Cth) s340(1)(a)(ii)  the Court held that the university had failed to prove that the reasons for Bessant's dismissal did not include those alleged by the NTEU - that she had exercised, or planned to exercise, workplace rights, including by making bullying and intimidation complaints against her new head of school to various people within RMIT and to WorkSafe Victoria.

RMIT maintained that Vice-Chancellor Professor Margaret Gardner made the redundancy decision. She told the court that she was motivated primarily by financial considerations, as the "charismatic" Bessant's area was running at a loss. The Court noted that the Vice-Chancellor indicated that she had "reasons other than those to which she referred explicitly" and that she failed to give explicit evidence that none of the reasons the NTEU alleged were behind the sacking "was operative in her decision". There was an absence of "any clear expression of a connection between the financial deficit in the Youth Work discipline and the choice of Bessant as the one who should be made redundant". "This includes the absence of the expression, or the application, of any criteria by reference to which the making of that choice occurred."

The Court also took into consideration Professor Gardner's "unconvincing insistence" that although Bessant's connections with the Youth Work discipline had been severed, her salary was "irrevocably attached" to its budget. Justice Gray was influenced by the Vice-Chancellor's determination to "ignore her knowledge" of animosity by Professor Hayward (the new head of school) towards Bessant

which was based on Professor Hayward’s views as to Professor Bessant’s conduct, which included the making of various complaints against him, and to attempt to confine herself to the financial case. It is based in part on Professor Gardner’s apparent determination to retain control of the process and to minimise the impact of the defects in that process to which the report of the Redundancy Review Committee drew attention, so that she could ensure that her own decision prevailed.

RMIT was held to have seriously breached its enterprise agreement with the NTEU, which required the university to offer employees whose position had an "uncertain future" the option of participating in a voluntary redeployment process.

In setting penalties, Justice Gray noted that RMIT, particularly the Vice-Chancellor, had displayed no contrition. He commented that

Unless the effect of a penalty is felt, RMIT might again succumb to the temptation to make use of its redundancy processes to rid itself of an employee when it desires to do so for reasons that would be prohibited by the Fair Work Act.

Moreover,

employers must understand that making use of redundancy as a pretext for getting rid of an undesired employee is not an option, if the reasons for wishing to get rid of that employee would be proscribed by the Fair Work Act. Both RMIT and employers generally must understand that obligations entered into pursuant to enterprise bargaining agreements that involve making efforts to avoid redundancies, by the use of such devices as voluntary redeployment programs, are real and substantive obligations, and must be met whenever the occasion for making an employee redundant has become a real prospect.

Importantly Justice Gray said his choice was between putting the academic "back into a situation in which, if she should have dealings with Professor Hayward, those dealings are likely to be unworkable", and forcing the university to "pay out a very large such of money" (estimated at $1.9 million), or "significantly in excess of $1m" even discounting for contingencies. "In the circumstances, it seems to me that the first of these courses is the preferable one."

Ordering Bessant's reinstatement to the position she held immediately before her dismissal took effect (which was a three-year non-teaching position, negotiated in a dispute settlement process after she lodged her complaints) would return her to a research position in a separate building to the head of school, and where should would be "insulated" from directly reporting to him. She would be "able to engage in productive research, which would benefit both her and RMIT".

Justice Gray said that at the end of the three-year non-teaching period, it would not be "outside the range of reasonable management skills to expect that a viable way will be found to ensure that Professor Bessant is able to return to teaching duties, whilst avoiding contact with Professor Hayward so far as possible, to ensure that the School continues to run smoothly".

Justice Gray noted that Bessant was paid a "substantial sum" on her redundancy. Because he was ordering reinstatement with recognition of continuity of employment, he did not propose to order that RMIT pay any further compensation for reputational damage. "By the judgment, she will be vindicated. She will suffer no economic harm arising from any damage to reputation."

RMIT is reportedly considering an appeal and - unsurprisingly - commented "The university takes very seriously its obligations under the Fair Work Act and the university's enterprise agreement".

Performance

'Performance Anxiety: Copyright Embodied and Disembodied' by Rebecca Tushnet in Journal of the Copyright Society of the U.S.A (Forthcoming) comments

The primary economic and cultural significance of copyright today comes from works and rights that weren’t contemplated by the Framers of the Constitution’s Copyright Clause. Performance — both as protected work and as right — is where much of copyright’s expansion has had its greatest impact, as new technologies have made it possible to fix performances in records and films and as cultural change has propelled recorded music and audiovisual works to the forefront of the copyright industries. Yet copyright has never fully conceptualized performance, and this has led to persistent confusion about what copyright protects.

One key problem of performance from copyright’s perspective is how to identify the creative elements that make a work of performance original and protectable, as distinguished from elements that make it a work (a fixed artifact). A major variant of this question involves authorship: who is sufficiently responsible for a work of performance to be deemed its author, and thus its default owner? In a world where works require dozens and even hundreds of people to complete them, this question will often be difficult to answer while both respecting creativity and recognizing economic imperatives. Another set of questions involves whether there are ways to recognize performers’ creative contributions without contributing to copyright’s bloat, and how to assess claims of infringement in a performance context when the alleged copying isn’t exact. This article addresses these puzzles of performance, arguing that manageability rather than creativity is generally the basis for the rights allocations and distinctions copyright law makes. The recent controversy over the film Innocence of Muslims, along with other instances in which subjects of audiovisual works claimed copyright in those works, demonstrate the limited role played by creativity in copyright law.

Blasphemy

Noting The Curious Persistence of Blasphemy: Canada and Beyond, the 268 pp PhD dissertation [PDF] by Jeremy Patrick

The purpose of this dissertation is to examine the history and future of the crime of blasphemy. In the introduction, several key questions are examined: (1) What is blasphemy? (2) Why do people blaspheme? and (3) What are the real or perceived harms of blasphemy? Subsequently, Part I examines the history of blasphemy and blasphemy-like laws in six jurisdictions around the globe: England, Ireland, Australia, Pakistan, the United Nations, and the United States. The jurisdictions chosen illuminate the fact that blasphemy is a complex concept which can be regulated in a wide variety of ways. These six provide an excellent picture of the varied and diverse ways the concept of blasphemy has operated and an understanding as to why it remains relevant today. Part II of this dissertation turns away from a global, comparative examination of blasphemy and instead provides a comprehensive, in-depth study of a single jurisdiction: Canada. This sustained history of blasphemy in Canada, the first ever published, allows for a valuable snapshot of the evolution of the crime into its modern form. Part III synthesizes the research and analysis in Parts I and II to answer the fundamental questions: what is the future of the crime of blasphemy in Canada and beyond?