HK Personality

'No Personality Rights for Pop Stars in Hong Kong?' by Peter Yu, on SSRN and as a chapter in The New Law of Brands and Reputation in the Asia Pacific Rim (Cambridge: Cambridge University Press 2012) edited by Andrew Kenyon, Ng-Loy Wee Loon & Megan Richardson, notes that -

Referred to as 'the Pearl of the Orient' for generations, Hong Kong is a glamorous city known for its lavish lifestyle and the rich and famous. Its entertainment products, in particular movies, television programs, and music, are highly popular in not only Asia, but also different parts of the world. Yet, the region does not offer strong protection of personality rights to celebrities. This development provides an interesting contrast to developments in the United States, where Hollywood actors receive very strong protection of their name, likeness, image, voice, or other personal attributes. The lack of protection also contrasts strongly with that of China, which offers in its civil code a right of portrait.

This book chapter begins by tracing the American origin of the right of publicity as an independent cause of action. It underscores the difference between this discreet right and the type of protection available in Commonwealth jurisdictions. The chapter then discusses the leading case in Hong Kong, Lau Tak Wah Andy v. Hang Seng Bank Ltd. The chapter explores why Hong Kong has yet to offer strong protection of personality rights despite having fertile conditions for such development. The chapter concludes by focusing on three areas of influence that may impact the future development of personality rights in Hong Kong.

Yu concludes that -

Although there has been a growing trend to harmonize intellectual property standards throughout the world, personality rights are unlikely to be the subject of such harmonization. The reasons are twofold. First, countries remain deeply divided over how a celebrity‘s identity is to be protected. In light of these deep divisions, it is unlikely that an international consensus would emerge in the near future. Indeed, international harmonization has been slow even in areas where there are greater international consensus, such as the promotion of access to essential medicines in less developed countries and the protection of traditional knowledge and cultural expressions. n this area of law, one can only imagine how limited harmonization will be in the near future.

Moreover, one of the major champions of international harmonization — the United States — has yet to attain consensus over the protection of personality rights at the national level. To date, the strength and scope of protection under state rights of publicity vary from state to state. Although there have been proposals calling for the establishment of a federal right of publicity statute, those proposals have yet to be adopted. Without a federal right of publicity, it is unlikely that the United States would seek greater international harmonization in the near future.

Although Hong Kong has many successful entertainers and entertainment products, it has yet to offer strong protection of personality rights. The lack of such protection provides a useful case study to understand the development of intellectual property protection in the Asia Pacific region. Through the historical British roots of Hong Kong intellectual property law, the study highlights the path-dependent nature of intellectual property development as well as the challenges confronting the establishment of new intellectual property rights. The limited protection in Hong Kong also foreshadows the larger debate about the future of protection for brands and reputation in the Asia Pacific region.

While it remains unclear whether Hong Kong will eventually offer stronger protection of personality rights, there is no doubt that the issue will deserve our close attention in the near future. There are, indeed, strong reasons both for and against greater protection of personality rights in Hong Kong. Hopefully, this chapter will provide the much-needed groundwork to help us understand better the need for and challenge in strengthening protection in this area.

FTC Breach

'The 10 Year Anniversary of the FTC’s Data Security Program: Has the Commission Finally Gotten Too Big for Its Breaches?' [PDF] by David Zetoony in 1 Stanford Technology Law Review (2012) 1-11 questions action by the US FEderal Trade Commission over data breaches and data security.

Zetoony argues that -

An online company provides products to individuals and small businesses. Like most online companies, it collects various types of information from its customers such as email addresses for notifications, mailing addresses for product shipment, and credit and debit card numbers for payment.

From its inception, the company’s management takes data security very seriously. The company forms an interdepartmental team to assess potential vulnerabilities to the company’s website, computers, and physical building, creates a written data security plan and policy, and, each year, conducts a data inventory to help identify where it stores the information that it collects and who has access to that information. As the company grows, it may even hire a Chief Privacy Officer who does everything from training employees on how to shred old invoices to making sure that the company’s growing list of outside vendors don’t have disparate data security practices. This company has complied with its obligation to secure consumer data, right?

Maybe not. The Federal Trade Commission’s settlements with SettlementOne Credit, ACRAnet, Inc., and Fajilan and Associates, Inc. suggest that in addition to enacting good practices for their own operations and making sure that their vendors do the same, companies are responsible for making sure that their customers have adequate data security. Although the FTC cites several statutes as the basis for this “duty to police customers,” it is not at all clear that the FTC’s theory could survive judicial scrutiny. Part I of this article provides a brief history of the FTC’s success over the past ten years to position itself as the primary federal regulator concerning issues of data security. Part II discusses the FTC’s recent enforcement actions and settlements with SettlementOne Credit, ACRAnet, and Fajilan. Part III analyzes the limits of the FTC’s data security enforcement powers. As part of this analysis, it reviews the scope of the new duty that the Commission proposes as part of the Reseller settlements, and analyzes whether the duty that the Commission seeks to impose can be supported by the Commission’s authorizing legislation. Finally the article concludes that the Commission’s attempt to create a new duty to police customers lacks firm statutory support and may not be successful if challenged in court.

Shipping

The 64 page Maritime Transport and Destabilizing Commodity Flows (SIPRI Policy Paper no. 32) by Hugh Griffiths and Michael Jenks of the Stockholm International Peace research Institute argues that over 60% of ships involved in reported cases of sanctions-busting or illicit transfers of arms, drugs, other military equipment and sensitive dual-use goods that could be used in the development of missiles and weapons of mass destruction are owned by companies based in the EU, NATO or other OECD states. That's not particularly surprising: much of the world's shipping is controlled by the North, albeit crewed by people from The South.

The report [PDF] is ambitiously claimed to be the first comprehensive study on maritime trafficking.

The authors comment that -

Maritime transport dominates international trade in licit and illicit goods. It accounts for the majority of seizures and suspect shipments of military equipment and dual-use goods (goods that have both civilian and potential military applications, including in the development of weapons of mass destruction and missiles) originating from or destined for embargoed states such as Iran and North Korea. It is the primary means of delivering shipments of conventional arms to actors involved in conflicts in Africa. Sea transport plays a major role in global flows of narcotics and associated chemical precursors. It is also the main mode of transport for other illicit and potentially destabilizing commodities, such as smuggled tobacco, oil and counterfeit goods.

One reason why maritime transport offers the greatest scope for trafficking of destabilizing commodities is that it is more difficult for states to monitor and control than any other means of international bulk transport. Jurisdiction over merchant shipping in international waters rests with a vessel’s flag state and, as a result, ships suspected of carrying destabilizing commodities cannot be boarded — and the commodities seized — without the prior agreement of the flag state.

The majority of ships involved in reported destabilizing military equipment, dual-use goods and narcotics sail under so-called flags of convenience and are registered in flag states with limited regulation and control of their merchant fleets. Nevertheless, the ships’ owners are mainly companies based in European Union, North Atlantic Treaty Organization and Organisation for Economic Co-operation & Development member states.

The most common ship types used in reported destabilizing military equipment, dual-use goods and narcotics transfers are general cargo ships and container ships. Ships involved in cases where the owner, commercial operator or officers appear to have been complicit in the transfer have an average age of more than 27 years. These ships tend to have poor safety and environmental inspection records or to have been involved in previous accidents or pollution incidents. A majority of the flags of convenience under which these vessels sail have been consistently targeted for inspection by port state control (PSC) regimes on the basis of poor performance in previous inspections.

They go on to argue that -

Arms proliferation networks are increasingly adopting techniques pioneered by drug trafficking organizations that integrate their logistics operations within the global supply chain through the use of sealed shipping containers, which are carried aboard vessels that are owned by mainstream shipping companies and engaged in licit trade. Such techniques represent the most cost-effective method when traffickers are confronted by well-resourced and coordinated surveillance operations supported by international agreements such as United Nations arms embargoes and counter-narcotics conventions.

There are significant differences between the frequency with which different types of commodity involved in destabilizing transfers are seized when detected. While almost all reported cases involving narcotics and precursors end in seizure
of the commodity, seizure rates for destabilizing military equipment and dual-use goods transfers are highly dependent on the countries involved. Significantly, more than half of reported destabilizing transfers to or from Iran and North Korea have resulted in seizure, but the seizure rates for shipments ultimately destined for embargoed states, regions or groups in Africa have been very low.

In response SIPRI offers seven recommendations -

1. Efforts to counter maritime trafficking should recognize the utility of PSC as a ‘choke point’ to monitor and control poorly regulated flag of convenience ships suspected of involvement in destabilizing commodity flows.
2. The more advanced PSC regimes should initiate outreach, training and technical cooperation to PSC authorities at ports identified as being more frequently visited by vessels suspected of involvement in particular destabilizing commodity flows.
3. At national level, operational links should be strengthened between PSC authorities and export control, customs, security and intelligence agencies. PSC authorities should be trained to identify suspect cargoes and ships.
4. At international and regional levels, formal and informal information sharing on suspect vessels should be improved between different governments and relevant PSC authorities.
5. Political support should be enhanced for a holistic approach to maritime security, using technologies, instruments and assets currently used for environmental protection, ship monitoring, fisheries protection and other aspects of maritime governance and surveillance in order to better target destabilizing maritime trade.
6. Governments should initiate dialogue with global shipping industry representatives on addressing destabilizing maritime trade, in particular the growing use of containerization.
7. In the EU, a mechanism should be established for sharing information on suspect shipments and ships that effectively shares information with and between relevant government agencies and PSC authorities.

Creativity

As an aficionado of Byzantine history, of imposture and of clerical squabbling - even more vicious than the conflicts within academia - I was amused by a reader's pointer this morning regarding allegations against South Australian religious figure Prokopios Kanavas. He has reportedly been called to a meeting of Greek Orthodox Community of South Australia council leaders to discuss claims Kanavas has made on his Facebook profile.

Kanavas has been in the news over the past two years. Kanavas was sacked as an SA police chaplain in 2011 when the state government was made aware of information that allegedly affected his "suitability" for the role, apparently centred on claims that he had been defrocked as a priest in 2008, joined the Greek army, subsequently being ordained by other church authorities and then moving to Adelaide.

His profile reportedly features claims that Kanavas completed a degree of theology and international law at the Hebrew University of Jerusalem, represented the Patriarchate of Jerusalem at conferences and restored a monastery at his own expense. The university reportedly indicates that there is no record of him studying at the institution. What's claimed to be a letter from the Patriarchate of Jerusalem contests the other claims.

If Kanavas has indeed been creative with his CV, he's not alone. Past entries in this blog have highlighted the creativity of figures such as Stephen Wilce, Dusan Milosevic, Greg Mortenson, Vitomir Zepinic, James Montgomery and Rex Crane.

Those figures were more modest than some pre-modern identity criminals, crazies or enthusiasts. Matthew vii 15 warns of false prophets "who come to you in the clothing of sheep, but inwardly they are ravening wolves". Some of those wolves were impressively dressed.

Gregory of Tours' Historia for example features an enthusiast who at the end of the sixth century declared himself to be Christ, travelling in the neighbourhood of Arles in company of Mary, performing miracles and gathering followers until struck dead by a representative of Bishop Aurelius. Ecclesiastical fraudster Paulus Tigrinus successfully conned Pope Boniface IX and Antipope Clement VII into colluding in his assertion that he was the wandering Patriarch of Constantinople. False bishops Adelbert and Clement, active in Germany around 744 CE, gained attention for unorthodoxy (Adelbert told his followers it was unnecessary to confess their sins because he already read their hearts) and assertion that their authority was confirmed by a miraculous letter from Jesus Christ that had supposedly fallen from heaven and been picked up by the Archangel Michael. Lest we scoff too much about mediaeval credulity regarding unorthodox delivery of correspondence we might recall the golden tablets and magic spectacles of Latter Day Saints founder Joseph Smith or the beliefs espoused by Tom Cruise after conversion to Scientology. Franciscan friar James of Jülich was sentenced to be boiled alive in 1392 after the bad career move of pretending to be a bishop and falsely ordaining numerous priests.

Meanwhile Christian Gerhartsreiter (aka Christopher Chichester and Clark Rockefeller) has been ordered to stand trial for the 1985 murder of landlord John Sohus. Gerhartsreiter's career of imposture is described in The Man in the Rockefeller Suit: The Astonishing Rise and Spectacular Fall of a Serial Imposter (New York: Viking 2011) by Mark Seal.

Sharing

The communique from the New Zealand and Australian Prime Ministers regarding the annual Australia-New Zealand Leaders’ meeting on 29 January features an item on data exchange -

Criminal History Sharing

The Prime Ministers agreed to enhance the reciprocal sharing of criminal history information for employment vetting purposes and plan an initial six month trial with Queensland to test how consistent and systematic requests for criminal history checks for employment purposes can be facilitated between Australia and New Zealand. They also directed officials to accelerate the work under way on reciprocal information sharing to support border control and law enforcement, consistent with free movement of people across the Tasman.

Last month, following revelations about a $21m fraud in a Queensland government health agency, the state premier announced that -

Currently Queensland Police conduct background checks via the Federal Government’s CrimTrac national database, which is limited to Australian jurisdictions only.

Ms Bligh said she had discussed with both Prime Ministers the need to broaden CrimTrac to include New Zealand’s criminal records database. This would allow police to easily identify any employees who had been previously convicted of criminal offences in New Zealand.

“Like all Queenslanders, I am angry and appalled at the theft of $16 million from taxpayers that should have been spent on health services,” Ms Bligh said.

“That’s why I have acted immediately to get answers on how and why this has occurred.

“Queensland Police have a good working relationship with their counterparts in New Zealand on a case-by-case basis but the data is not exchanged as part of their respective criminal history checking processes.

“But it has become clear there may be a heightened risk of people with criminal histories remaining undetected given the free flow of Australian and New Zealand citizens who are able to live and work in both countries.

“That’s why I have this morning spoken directly with Prime Minister Julia Gillard and the New Zealand Prime Minister John Key to discuss how we can work together to share information that will stop criminals from exploiting this loophole.”

Ms Bligh said both Prime Ministers shared her concerns about the need to tighten up procedures and were seeking urgent advice on the next steps that were needed.

“Whilst this fraud has occurred against the people of Queensland, the exclusion of New Zealand criminal histories from CrimTrac meant this could have happened to any public sector agency across Australia,” Ms Bligh said.

“Similarly, Australian criminals may be taking advantage of this situation in New Zealand.

“It is critical law enforcement agencies on both sides of the Tasman are able to quickly access the most accurate information on anyone who has a history of offending, especially where they are working in positions of trust. ... We will leave no stone unturned in getting answers and I won’t hesitate to hold those responsible to account.”

New Zealander Hohepa Morehu-Barlow, who among other things claimed to be royalty, was arrested last month after claims that $21m had been embezzled from Queensland's health authority. That news coincided with conviction of New Zealander Warren Attfield for another fraud in Queensland. Attfield was sentenced to five years in a NZ prison in 1996 after admitting defrauding South Wood Exports of $2.8m to fund his gambling, described in Two over three on Goodtime Sugar: the New Zealand TAB turns 50 (Wellington: Victoria University Press 2000) by David Grant. At the end of his sentence Attfield moved to Australia and in the absence of an Australian criminal record became finance officer at the Yaamba Aboriginal & Torres Strait Islander Corporation for Men. He defrauded the corporation of over $300,000, confessing when the organisation did not have enough money to pay staff wages.

Yaamba's former manager Bob Salam is reported as stating that -

he would not have hired him if he had known about [Attfield's] convictions.

"We were looking for a bookkeeper and his name came up," Salam said.

Attfield presented a reference from another Aboriginal corporation in Kalgoorlie, Western Australia, but did not mention any convictions, he said.

"We didn't get a check ... He was a good employee, he seemed to be going great guns. He was getting the books done and seemed pretty clued up on stuff."

Salam said he knew Attfield liked a bet but never suspected he had a gambling problem or was stealing money to pay for it.

"I used to go to the TAB with him," he said.

Organ Harvesting

'What makes killing wrong?' by Walter Sinnott-Armstrong & Franklin Miller in Journal of Medical Ethics (2011), in a provocative discussion of organ harvesting, argues that it is not morally wrong to kill people: "killing by itself is not morally wrong, although it is still morally wrong to cause total disability".

What makes an act of killing morally wrong is not that the act causes loss of life or consciousness but rather that the act causes loss of all remaining abilities. This account implies that it is not even pro tanto morally wrong to kill patients who are universally and irreversibly disabled, because they have no abilities to lose. Applied to vital organ transplantation, this account undermines the dead donor rule and shows how current practices are compatible with morality.

The article addresses ongoing disagreement among ethicists, lawyers and medical practitioners regarding organ donation after cardiac death (DCD), ie where a patient is neurologically damaged and cannot function without a respirator. Removal for transplantation of organs - eg hearts, livers, kidneys, gonads - from someone who has a pulse but is vegetative is controversial, with US practitioners insisting on a 'dead donor' rule (ie the person whose organs are being removed must be definitively dead). The authors comment that

the dead donor rule is routinely violated in the contemporary practice of vital organ donation. Consistency with traditional medical ethics would entail that this kind of vital organ donation must cease immediately. This outcome would, however, be extremely harmful and unreasonable from an ethical point of view [because patients who could be saved will die]. Luckily, it is easily obviated by abandoning the norm against killing.

They argue that rendering someone totally and permanently incapacitated is just as bad as taking a life. Killing a totally disabled patient does that person - although Sinnott-Armstrong & Miller would presumably disagree with the reference to 'person' - no harm: killing cannot disrespect the patient's autonomy because the patient is so incapacitated as to lack autonomy.

The authors dismiss notions that life is "sacred", arguing that the only relevant difference between death and life and death is the existence of abilities. A fundamentally neurologically-injured person no longer has those abilities.

if killing were wrong just because it is causing death or the loss of life, then the same principle would apply with the same strength to pulling weeds out of a garden. If it is not immoral to weed a garden, then life as such cannot really be sacred, and killing as such cannot be morally wrong.

Dot Regulation

'Balancing Internet Regulation and Human Rights' by Aleksey Ponomarev indicates that -

It’s not a secret that with the development of the Internet the transition from freedom into control can be noticed. Having been considered as a completely independent medium of communication which lays outside of any state jurisdiction according to views of "digital libertarians" in the early days of the Internet, cyberspace is becoming fully, and extensively, regulated space that we have ever known. This article aims to analyze the current instruments of Internet regulation both legal and through Internet architecture, and to find a balance between necessity of regulation in one hand and obligation to follow human right standards on the other hand. For this purpose various Internet control and censorship techniques is discussed, as well as international human rights standards which might be jeopardize by exercising of such control. In the end the attempt to strike a balance between Internet regulation and human rights is has been made.

Ponomarev concludes that -

it is clear that the Internet can be a tool to expand our fundamental rights, empowering us with boundless information and connecting us with individuals and communities around the world. While it is a powerful and positive forum for free expression and exchange of ideas and knowledge, the Internet poses a profound danger to our fundamental rights, serving as a tool for criminals and even terrorists. Threats come also from private sector which restricts privacy and freedom of knowledge. However there is a common view about free and independent Internet, it is obvious that state regulation is inevitable. And least clear of all is how we can regulate the Internet in such a way that allows us to draw on its benefits, while limiting the very real and serious dangers of abuse. The regulation is complicated due to the inherent nature of the Internet — a decentralized, user-driven network that is under the control of no government and that transcends nearly all borders.

Although regulation of cyberspace is not easy task it does not mean that it is not needed. While it is true that market and social norms influence the Internet to some extent, in reality law and architecture are main regulators of cyberspace. Legal and technological measures are applied separately or in a combination. In some cases, for example when all parties are located within the physical territory of a particular state, regulation is rather effective, but when information comes from external sources it is almost impossible to control that flow of the Information. The law of the regulating state cannot be normally applied to foreign entity and states. Various technologies of the Internet filtering aimed to restrict the access of ‘harmful’ or ‘unwanted’ information or web-pages are neither effective, nor reliable (in case of geo-identification for example). Above-mentioned technologies cannot only be easily circumvented, but are also extremely costly and might violate fundamental human rights of Internet users.

Both legal and technological measures of the Internet regulation jeopardize rights and freedoms which constitute the highest values of free democratic society. Internet filtering methods such as Deep Packet Inspection as well as self-censorship measures constitute the highest danger for human rights.

Traditional rights to freedom of speech and expression, right to privacy and freedom of knowledge also should be protected in the Internet, as in the real life. Thus, all international human rights instruments apply to the cyberspace as well. Moreover one can witness the emergence of a new generation of rights – Internet rights. The said rights support the basic principles of the Internet architecture, guarantee the freedom of the Internet and free flow of information within cyberspace.

However all rights and freedoms are not absolute and are a subject to restrictions, cause there is tension between individual right and obligation of the state to exercise its functions social and security functions. Ways of finding a balance are provided in human rights instruments, however it is very difficult not to overstep the prescribed rules. According to the author’s view traditional rights should be reaffirmed and new Internet rights fixed by adapting a new international legislation focused on Internet. An attempt to unify possible exception from human rights should be made, harmonization of moral and national security limitation should also be reached. As Internet is international phenomena a collective efforts of states should be taken in order to regulate the Internet. The treaties might be realized in form of ‘soft law’ – declarations, recommendations, reports, as well as acts of international organizations, non-governmental organizations. It matters little whether these instruments are “non-binding” because this law is more likely to be enforced in the so-called ‘court of public opinion’ than in a judicial forum.

Special mechanisms should be designed to pressure states to refrain from violating rights. Civil organizations and human rights advocate representing the opinion of the society should be part of that mechanism. Moreover every user should be given a chance to participate in the process of regulation of the Internet influencing technologies of the Internet control.

Finally, people should not forget that the Internet was made for providing new opportunities for communication, business, information sharing, as well as for promoting human rights and freedoms all over the world. Thus any restrictions of both well recognized and innovative rights should be accurate and limited according to the interests of the society.