02 January 2010

Blasphemy

Ireland's new 'Blasphemy Law' - a section of the Defamation Act 2009 - came into effect yesterday and has been greeted by street theatre in the form of publication, by the republic's Atheist Society, of 25 'blasphemous' statements from figures such as Frank Zappa, the Rev Ian Paisley, George Carlin, Tom Lehrer, Richard Dawkins and Pope Benedict XVI. They are rather tame statements, unlikely to trigger a successful prosecution (in particular given statutory defences of speech that has literary, artistic, political, scientific or academic merit) but sufficient to attract global media attention.

Carlin's offering, which presumably won't sway the righteous or provoke a prosecution, is -
Think about it. Religion has actually convinced people that there's an invisible man living in the sky who watches everything you do, every minute of every day. And the invisible man has a special list of ten things he does not want you to do. And if you do any of these ten things, he has a special place, full of fire and smoke and burning and torture and anguish, where he will send you to live and suffer and burn and choke and scream and cry forever and ever ’til the end of time! But He loves you. He loves you, and He needs money! He always needs money! He’s all-powerful, all-perfect, all-knowing, and all-wise, somehow just can’t handle money! Religion takes in billions of dollars, they pay no taxes, and they always need a little more.
The Act characterises blasphemy as -
matter that is grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion.
There is an element of intentionality, ie the person who publishes or utters that grossly abusive or insulting matter must intend to cause such outrage among a substantial number of the religion's adherents.

The Act specifies that 'religion' does not include "an organisation or cult" ... "the principal object of which is the making of profit" or that "employs oppressive psychological manipulation" of its followers or for the purpose of gaining new followers, an exclusion that Irish courts might find useful in allowing criticism of the notoriously litigious entity known as Scientology.

The Blasphemy Law was enacted last year, following repeal of Eire's 1961 Defamation Act. It makes blasphemy a crime punishable by a fine of €25,000, a penalty that's a sharp reduction from the €100,000 in the first draft.

The Atheist Society has argued that the new legislation is "both silly and dangerous" -
It is silly because it revives a medieval religious crime in a modern pluralist republic. And it is dangerous because it incentivises religious outrage, by making it the first trigger for defining blasphemy.

The problematic behaviour here is the outrage, not the expression of different beliefs. Instead of incentivising outrage, we should be educating people to respond in a more healthy manner than outrage when somebody expresses a belief that they find insulting.

The law also discriminates against atheist citizens by protecting the fundamental beliefs of religious people only. Why should religious beliefs be protected by law in ways that scientific or political or other secular beliefs are not?
The Irish government announced that it needed to pass a new blasphemy law to avoid leaving "a void" and to respect the Constitution, albeit a void that the Atheist Society noted had been in existence since at least 1999, when the Republic's Supreme Court found in Corway v Independent Newspapers [2001] 1 IRLM 426 that the 1961 law was unenforceable because it did not define blasphemy.

The 1937 Irish Constitution indicates that "the publication or utterance of blasphemous, seditious, or indecent material is an offence which shall be punishable in accordance with law" but contrary to some claims in the blogosphere Ireland has not had specific statute regarding blasphemy (whether in relation to a specific Christian church, more broadly protective of the Christian faith/deity, or of deities per se).

Protection instead has reflected traditional UK law with an offence of 'blasphemous libel' in common law and as part of defamation statutes. A 1991 report by the Law Reform Commission concluded there was no place for an offence of blasphemous libel -
in a society which respects freedom of speech. ... The argument in its favour that the publication of blasphemy causes injury to feelings appeared to us to be a tenuous basis on which to restrict freedom of speech. The argument that freedom to insult religion would threaten the stability of society by impairing the harmony between groups seemed highly questionable in the absence of any prosecutions.
Critics have suggested that -
We should be removing all of the 1930s religious references from the Constitution, not legislating to enforce them.

The preamble to our Constitution states that all authority of the State comes from a specific god called the Most Holy Trinity. It also humbly acknowledges all of the obligations of the people of the State to a specific god called Our Lord Jesus Christ.

Up to a quarter of a million Irish atheists cannot become President or a judge unless they take a religious oath. These religious declarations are contrary to Ireland's obligations under the UN International Covenant on Civil and Political Rights.

The Constitution [Article 44] also states that the homage of public worship is due to Almighty God. This is much more than an assertion of the right of citizens to worship this god. It is an assertion of the right of this god to be publicly worshipped by citizens. ...

The Constitution also contains many other references to this god and to religion generally. Our national parliament reflects this by starting each day's business with a prayer explicitly asking the Christian God to direct all of their actions. Under this guidance, they have legislated for many public policies that are heavily influenced by religion.
Others have suggested that concerns regarding violence or public disorder - where the offended take matters into their own hands and smite unbelievers or where blasphemers incite violence through offensive statements - would more effectively be addressed through anti-vilification law. That is consistent with the March 2009 comment by the Irish Minister for Foreign Affairs that -
We believe that the concept of defamation of religion is not consistent with the promotion and protection of human rights. It can be used to justify arbitrary limitations on, or the denial of, freedom of expression. Indeed, Ireland considers that freedom of expression is a key and inherent element in the manifestation of freedom of thought and conscience and as such is complementary to freedom of religion or belief.
Meanwhile there are reports that "a Somali man" (apparently, in fact, a Danish resident) has been shot by Danish police after breaking into the home of cartoonist Kurt Westergaard while wielding an axe, presumably to wreak righteous vengeance on Westergaard for his 2005 Jyllands-Posten caricature of the Prophet Muhammad.

Dog Skin

Colin Dayan in 31(23) LRB (2009) comments that -
Dog involvement in the lives of humans is documented, questioned and defined by law. Legalised violence against dogs and their owners has a brutal history. English common law, reinvigorated in the United States in the 19th century, turned to old legal conceits about dogs in modern judgments on dog stealing. A statute of George III explained that a dog could not be stolen, for a dog was not considered property. A late 19th-century case in South Carolina summarised the statute: 'It was larceny to steal a tame hawk, but not larceny to steal a tame dog, although it was larceny to steal the hide of a dead dog'. It is disturbing to think that the skin of a dead dog is worth more than a dog alive, but perhaps this is not surprising. Dogs were legally considered no different in terms of property from human corpses. Stealing a corpse, as Blackstone wrote, was not a felony, unless 'some of the graveclothes be stolen with it'. There is property in the skin of a dog as there is in a winding sheet. But a living dog, like a cadaver, was res nullius. It belonged to no one; no one had any right in it.
Dayan goes on to conclude that -
The modern conception of dogs as personal property has done very little to advance their position. They remain subject to the same repressive treatment as others targeted for coercion and control. They have taken their place alongside vagrants and criminals. Out of the maimed right of property in dogs has come a familiar deprivation of persons considered either too servile or too poor to count.
Blackstone's Commentaries - I rely on Vol IV ('Of Public Wrongs') in the 1979 University of Chicago Press facsimile of the 1765-69 edition - is less restrictive than might be inferred from Dayan's reading. Blackstone at 236 commented that larceny is applicable in relation to
all valuable domestic animals, [such] as horses, and of all animals domitae naturae, which serve for food, [such] as swine, sheep, poultry and the like ... and also the flesh of such as are ferae naturae, when killed.
Blackstone noted that -
As to those animals, which do not serve for food, and which therefore the law holds to have no intrinsic value, as dogs of all sorts, and other creatures kept for whim and pleasure, though a man may have a base property therein, and maintain a civil action for the loss of them, yet they are not of such estimation as that the crime of stealing them amounts to larceny.

01 January 2010

God's Executioner

The Berlin Review of Books features an extract from Joel Harrington's 'God's Executioner: Meister Frantz Schmidt of Nuremberg'.

Schmidt, as the public executioner of Nuremberg, kept personal journal between 1573 and 1617, "recording and describing each and every execution and corporal punishment he administered" -
torture by various methods, flogging, cutting off of fingers or ears, as well as judicial execution by hanging, beheading, burning, drowning, live burial, or breaking on the wheel.
Accounts include -
1573 - Kloss Renckhart of Feylsdorf, a murderer. Committed three murders with his companion. First, he shot dead another companion. Secondly, a miller's man who helped him to attack and plunder a mill by night. The third instance was again at a mill, called the Fox Mill, on the mountains, which he attacked at night with a companion, shot the miller dead, raped the miller's wife and maid, forced them to fry some eggs in fat and laid these on the dead miller's body, then forced the miller's wife to join in eating them, then kicked the miller's body and said, "Miller, how do you like this morsel?". Also robbed the mill. On this account executed on the wheel at Graytz, in the archbishopric of Bamberg.

February 1584 - Hennsa of Geyselwind, otherwise known as Fatty; Hennsa Palllauf of Hernda; Killian Wurmb of Wirnsbach, otherwise known as Rear End; Hans Schober of Weher, otherwise known as Dusty; and Hennssla Klopffer of Reigelsdorff. Five thieves who ... had to be clothed, for they were naked and bare; some of them knew no prayers and had never been in a church. The eldest were 22, 17, 16, and 15 years old; the youngest 13 years. All five from here. Executed with the rope at Nuremberg.
One cannot hang people without clothes.

Other incidents include -
August 1594 - Christoff Mayer, a weaver of fustian, and Hans Weber, a fruiterer; both citizens of Nuremberg who for three years had practiced sodomy together and were informed against by a hook-maker's apprentice, who caught them both in the act behind a hedge. The fruiterer had practiced this for twenty years, namely with the cook Endress, with Alexander, also with Georg in the army, and with the baker Toothy Chris at Lauf, and otherwise with many other baker servants that he couldn’t name. The weaver was first executed with the sword and then his body was burnt with the fruiterer, who was burnt alive.

November 1617 - Burnt alive here a miller of Manberna, who however was lately engaged as a carrier of wine. Because he and his brother, with the help of others, practiced coining and counterfeiting money and clipping coins fraudulently. He also had a working knowledge of magic ... This miller, who worked in the town mills here three years ago, fell into the town moat on Whitsunday. It would have been better for him if he had been drowned, but it turned out according to the proverb that "What belongs to the gallows cannot drown in water".
Harrington notes Schmidt's -
self-identity as a restorer of social order, a kind of moral accountant, who, in his own words, "did his duty and made things right again". As if making entries in a ledger, Meister Frantz carefully lists all known offenses committed by each individual, including full itemization of all stolen property, and numbers all of his punishments, capital and corporal, providing annual totals of each.

While Schmidt's tone is almost always dispassionate, the relative length of the entries and other clues reveal his implicit hierarchy of social values. Violent crimes, particularly the outrages committed by vicious robber gangs, were clearly the worst and required the most severe punishments to restore justice. Abuses of trust, however, were nearly as grievous in Schmidt's eyes, including treason, the murder of a relative (especially a child), the rape of a young girl, or audacious financial fraud, such as the one-legged "treasure finder" Elizabeth Aurholtin (aka "Scabby"), whose schemes amassed a considerable personal future, or the master forger and con-man Gabriel Wolf, who defrauded nobles across Europe of huge amounts. Crimes against property in general required strict rectification, often including hanging for theft. But most such offenses – except when they directly abused people’s good will or hospitality – did not arouse Schmidt's ire. His complacency was even more evident in a variety of "victimless" sexual offenses (not rape), typified more by exasperation at the defiance of recidivist prostitutes and their pimps than by any evangelical fervour.
He also notes Scmidt's other self-image as -
a healer-priest, likewise evident in his pervasive concern with full accounting of each individual's crimes and sins, no matter how small, and Schmidt's own active role in reconciling the sinner with God. Strikingly, his approach is much less overtly doctrinaire than that of his colleague, prison chaplain Johannes Hagendorn, who also kept a personal journal of criminal cases. Rather, Schmidt seeks to create in the elaborate spectacle of public death a sort of preliminary last judgment that provides the condemned the opportunity to achieve "a good end" or "fine death", and in his journal he comments extensively on his own success or failure in ensuring that they did not part the world "godless"” or "with no hope of salvation". Above all, the journal entries and supplemental legal sources portray a man steeled to the use of torture and other violence on the offenders before him but also consistently attentive to avoid unnecessary cruelty. Schmidt, for example, successfully leads a pioneering campaign to abolish the drowning of female felons and execute them by what he considered the more humane method of decapitation. He also regularly persuades his magisterial colleagues to behead those condemned to die by fire or being drawn and quartered.

31 December 2009

Legal pluralism and cadavers

The ABC, in reporting "Clash of laws over Indigenous autopsy", highlights questions about legal pluralism and cultural diversity in Australia.

Prominent Indigenous artist Banduk Marika has unsuccessfully sought an injunction against the Northern Territory coroner's authorisation of an autopsy on her son, who was run over on 20 December. Marika reportedly argues that an autopsy is inconsistent with traditional law. She had told police after her son's death that she did not want an autopsy. She was told by the coroner during the next day that an autopsy would be carried out in 48 hours.

Marika was one of the participants in the landmark 'Carpets Case' (aka Indofurn Case) - George Milpurrurru, Banduk Marika , Tim Payunka and the Public Trustee of the Northern Territory v Indofurn Pty Ltd, Brian Alexander Bethune, George Raymond King and Robert James Rylands [1994] FCA 1544 - regarding intellectual property.

During the injunction hearing Marika reportedly told the court that her family felt "disfigurement" of her son's body was unnecessary, that the family had not seen any evidence from police to justify it and that when a body is interfered with by a foreign hand the dead person's spirit is prevented from moving forward into the next world.

Disquiet about autopsies (or more broadly about delays in burial/cremation of a body) is not restricted to Indigenous people. Most Australian jurisdictions make some allowance for cultural sensitivities, for example under ss 20 and 28 of the Coroners Act 1997 (ACT) and ss 25, 88 and 96 of the Coroners Act 2009 (NSW). (Note associated sanctions such as those under s 83 of the ACT Act.)

Coronial powers to order autopsies reflect the authority of the state (and rationales such as serving justice through fact-based criminal investigation and protecting public health through research in disease or injury). They also reflect the notion - articulated for example in Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406 and Leeburn v Derndorfer [2004] VSC 172 - that there are typically no property rights in a cadaver or - as noted in R v Sharpe (1856-57) Dears & Bell 160; 169 ER 959 - comprehensive rights of possession.

Your survivors thus do not own your bones and other "stuff". Once you are dead you are no longer in a position to claim torts of assault, false imprisonment, defamation and so forth. (In circumstances where a coroner is not involved you might, however, have made an 'advance direction' under for example s 25 of the Human Tissue & Transplant Act 1982 (WA) that your body may be 'anatomised' after death and provision is made in Australian jurisdictions, through for example s 22(5) of the Transplantation & Anatomy Act 1978 (Qld), for authorisation of post-mortem organ harvesting.)

The record of Australian courts in approving or rejecting applications to prevent autopsies or simply order that a deceased person be buried, burned or exposed for transmutation by vultures is mixed.

Riley J in Wuridjal v Hand [2001] NTSC 99 thus rejected an application by members of the Yolngu community. Coroners' decisions have been overturned in for example Green v Johnstone [1995] 2VR 176, Re Death of Simon Unchango (Jnr); ex parte Simon Unchango (Snr) (1997) 95 A Crim R 65 and Abernethy v Deitz (1996) 39 NSWLR 701.

Corporations and dialectic

Reading Oona Eisenstadt's derridean 'Making Room for the Hebrew: Luther, Dialectics, and the Shoah' in 69(3) Journal of the American Academy of Religion (2001) 551-575 and 'Early Elements of the Corporate Form: Depersonalization of Business in Ancient Rome' (Amsterdam Center for Law & Economics Working Paper No. 2009-14 here) by Barbara Abatino, Giuseppe Dari-Mattiacci & Enrico Perotti.

Eisenstadt looks at Franz Rosenzweig's 1926 'Scripture and Luther' and Ullmann & Kien's Terezin masterpiece Der Kaiser von Atlantis [YouTube snippet here].

The 43pp paper by Abatino et al argues that -
A crucial step in economic development is the depersonalization of business, which enables an enterprise to operate as a separate entity from its owners and managers. Until the emergence of a de iure depersonalization of business in the 19th century, business activities were eminently personal, with managing partners bearing unlimited liability. Roman law even restricted agency. Yet, the Roman legal system did develop a form of de facto depersonalized business entity, which, although in a radically different way, exhibited all the distinctive features of modern corporations (continuity, direct agency, limited liability, and entity shielding). Business was depersonalized by making the fulcrum of the company a nonperson: the slave. Paradoxically, limited liability was achieved by extending the liability of the master to include assets managed by the slave (the peculium), in contrast with an earlier principle that the slave owner was not responsible for transactions by his slave. On the question why de iure depersonalization emerged only over a thousand years after the Roman experience, we discuss three hypotheses: (i) a cultural hypothesis, (ii) a technological hypothesis and (iii) a biased-evolution-of-remedies hypothesis.
All in all less entertaining - and, for me, less persuasive - than A Social History of Company Law: Great Britain and the Australian Colonies 1854-1920 (Aldershot: Ashgate 2009) by Rob McQueen.

29 December 2009

Singing chickens

Singing chickens? Actually, a singing goose, care of the oily Mr Orff.

The BBC and PPL (Phonographic Performance Ltd) - the UK music copyright collecting society (CCS) that now promotes itself as "a music service company" - have announced a list of what has variously been characterised as the thirty "most listened to" classical works, "most played recordings", "most played classical music" or "most widely heard" classics over the past 70 years.

The list, alas not described in much detail on the PPL site, is "compiled ... from songs played on TV, radio, online streaming and in public places such as shops". The compilation includes works other than songs. It is apparently restricted to the UK and covers phonographic performances, ie playing tapes or disks rather than renditions by a live orchestra, band, choir or soloist.

What are the works that the guardians of the airwaves and coffee shop operators think that we should hear (or that we want to hear). Overall, a somewhat syruppy collection that offers a perspective on the 'most borrowed' list highlighted here -
1. Orff - 'O Fortuna' from Carmina Burana
2. Vaughan Williams - Fantasia On A Theme By Thomas Tallis
3. Rimsky-Korsakov - Scheherazade
4. Tchaikovsky - The Sleeping Beauty
5. Schumann - Romance In F Sharp Major Op.28/2
6. Delibes - Sylvia
7. Rachmaninov - Symphony No.2
8. Holst - The Planets
9. Tchaikovsky - The Sleeping Beauty
10. Schubert - Symphony No.5
11. Rachmaninov - Piano Concerto No.2
12. Bizet - Carmen
13. Holst - The Planets
14. Vaughan Williams - The Lark Ascending
15. Zipoli - Elevazione For Cello And Oboe
16. Beethoven - Symphony No.6 ('Pastoral')
17. Grieg - Piano Concerto
18. Tchaikovsky - Swan Lake
19. Litolff - 'Scherzo' from Concerto Symphonique No.4
20. Holst - The Planets
21. Vivaldi - The Four Seasons
22. Rodrigo - Concierto De Aranjuez
23. Saint-Saens - Symphony No.3 ('Organ')
24. Elgar - Cello Concerto
25. Bruch - Violin Concerto No.1
26. Mendelssohn - Symphony No.4 in A Major ('Italian')
27. Orff - 'O Fortuna' from Carmina Burana
28. Rimsky-Korsakov - Scheherazade
29. Holst - The Planets
30. Mendelssohn - A Midsummer Night's Dream
Multiple appearance of particular works apparently reflects the popularity of specific performances (eg Charles Mackerras's Scheherazade is number 3, Seiji Ozawa's is number 28). There is no indication of context - did we hear yet another 'bang the saucepans' jingle from Orff as background noise in a coffee, chocolate or condom ad? - and no indication of whether consumption patterns have changed (eg Vaughan Williams was big in the sixties and seventies but is now way down the list in contemporary rankings?).

National biometrics in .il

The Knesset has passed Israel's Biometric Database Law, expected to provide the statutory basis for introduction of 'smart' identification documents for all Israelis.

Interior Ministry officials will be authorized to collect the biometric data - fingerprints and facial contours - of all residents for the purpose of issuing identity cards, passports or other official documents.

As with similar identity regimes in Australia and elsewhere (eg the latest generation of Australian passports), those documents will feature a microprocessor (ie a chip similar to those used in some credit cards and perimeter access cards) that will contain data based on the individual's fingerprints (two fingers) and facial geometry, eg a unique hash generated from an image of the person's face rather than the image itself. Biometric and other information on the databases will be matched with registration information on national databases. That would permit an official to determine, for example, that the photo on an identity document corresponds to the bearer's face but that the individual is using another name and therefore is engaging in an identity offence.

As yet I haven't sighted the legislation. From media reports it appears that the government has mollified some critics through a statutory commitment to establish two discrete databases: one including the card-bearer's name and the other featuring data from the individual's fingerprints and the face. The databases will be established and maintained in two separate ministries and "will be linked by a code". There seem to be no official statements about sharing data with the private sector.

The 'splitting' of initial plans for a central database was an addition to the draft legislation in November, promoted as a safety measure -
so that anyone managing to penetrate one data bank would have only part of the information and it would be meaningless without the information from the other data bank.
The Chair of the Knesset Science & Technology Committee claimed -
The protection provided for this data bank is among the best in the world. It is protected at a level of 11 on a scale of one to 10
... which sounds impressive but is arguably meaningless. (What's an '11' when the scale ends at '10'? The Bill's sponsor subsequently explained that "if the databases of the Mossad, the Shin Bet and the Prime Minister's Office are currently protected at a level of 10, then this one will be protected at a level of 11".)

Debate about development of the new regime featured the usual claims. A government spokesperson claimed that "there are 350,000 people living in Israel with fraudulent documents including tens of thousands with forged passports" and that forgery of the 'smart' documents will be impossible.

One former police executive offered an exceptionalist argument, commenting that -
in a normal state that does not face the enemies we face, there is no need for such a system. But here we are in an intolerable situation, facing internal and external enemies. The ease with which current Israeli documents can be forged is an enormous problem.

[Identity documents] are so easily faked. For us, this is an existential issue. There are thousands of people walking around with fake IDs or with no IDs whatsoever. Some are criminals, and others are hostile elements. You would not believe how many suspects we have found who changed their identities to hide previous convictions. Many identities have also been stolen.
He noted that the danger of official misuse of information is present with existing databases.

Critics expressed concern that information will be leaked or misused, eg "Criminals could steal fingerprint information and use it to incriminate innocent people". Likud Minister Michael Eitan indicated that -
not only will the system threaten the privacy of all Israelis, but even worse, it will create an atmosphere in which everyone will feel their privacy is being invaded.
Eitan was not however planning to vote against the law.

Implementation of the law involves a two year trial period, during which participation in the biometric database/s will be voluntary. Three months prior to the end of trial, the government will formally re-assess the regime's effectiveness, with the Prime Minister and Interior minister reporting to a special ministerial committee and to a Knesset committee. If the trial is deemed successful, Interior Ministry officials will be mandated to collect the biometric information without consent. The legislation allows some wriggle room: the Interior Minister will be empowered to extend the trial by an additional two years after provision of the reports, with a requirement that a 'final decision' must be made within four years after initiation of the databases.

Rats begin to chew the sheets

Rick Perlstein in Nixonland (New York: Scribner 2008) at 362 quotes a memo on RN's first day as US president -
To: Mrs Nixon
From: The President

With regard to RN's room, what would be the most desirable is an end table like the one on the right side of the bed which will accommodate TWO Dictaphones as well as a telephone ... In addition he needs a bigger table on which he can work at night. The table which is presently in the room does not allow enough room for him to get his knees under it
Not quite my idea of pillow-talk.

Perlstein goes on to quote Nixon (at 460) as commenting that –
It's a piece of cake until you get to the top. You find you can’t stop playing the game you’ve always played it because it is part of you and you need it as much as an arm or leg … You continue to walk on the edge of the precipice because over the years you have become fascinated by how close to the edge you can walk without losing your balance.

28 December 2009

and it all went black

I'm underwhelmed by the announcement that cyberrights advocacy group Electronic Frontiers Australia (EFA), the Australian counterpart of the EFF that's phobic about content restriction and resolutely treats the net as deserving an uppercase 'i', is -
encouraging Australian Internet users to take part in its Great Blackout Campaign, by blocking their profiles on Twitter and by 'blacking out' the home page of their web site.
Oh dear, a Twitter-free day ... or a "National Day of Action" without tweets from the self-identified digerati. Somehow I don't think that the Government will be brought quivering to its knees and civilisation as we know it will cease because a handful of geeks have prised themselves away from the keyboards and screens in a brave protest "against the Government's plan to introduced mandatory ISP-side Internet filtering".

I've hitherto resisted the temptation to comment on the censorship plan, given the shrill - and at times quite disingenuous - comments from advocates for/against mandatory filtering. The Government's plan strikes me as clumsy and, given my past criticisms of filtering, as oversold. Censorship 'security theatre' is problematical because it is likely to induce unrealistic expectations among some consumers that all offensive content (or the most offensive content) has been comprehensively blocked, enabling parents/guardians to safely abdicate responsibility for those under their care.

Notions of internet exceptionalism, in particular claims that we must not restrict any online content, are equally problematic. In practice liberal democratic governments have attempted, usually with considerable success, to restrict the dissemination of particular content through print and electronic media and through face to face contact. That restriction can be justified on human rights grounds and we might question unthinking adoption of an ideology founded on misunderstandings about the US Constitution's enshrinement of free speech. Is the net so special that it's situated outside legal frameworks?

A day without tweets will attract media attention but life will continue, perhaps even for the better. Step outside, Twitterers, and get some fresh air. While you are there you might contemplate whether there are other aspects of regulation that deserve attention and whether it's time to forgo being cyberselfish, instead taking substantive action against human rights abuses in Australia and overseas. Staying away from the keyboard for a few hours is a lazy protest. Depriving readers of rivetting personal communiques about whether the Twitterer had fries for lunch, is hungover or is rooly mad at big bad Senator Conroy may affect that author's self-esteem but has the same negligible impact - and the same self-indulgence - as buying a plastic bracelet to make world poverty go away overnight.

Vilification

The judgment by the NSW Administrative Decisions Tribunal in Trad v Jones & anor (No. 3) [2009] NSWADT 318 has found that a complaint of racial vilification against shock jock Alan Jones and broadcaster Harbour Radio Pty Ltd (licensee of Radio 2GB) is substantiated, with the respondents being ordered to pay controversial figure Keysar Trad damages of $10,000. The broadcaster will conduct a review and there will be an apology.

The decision reflects the Anti-Discrimination Act 1977 (NSW) [ADA], part of the suite of national and state/territory law that seeks to inhibit ethno-religious vilification, for example action under the Racial Discrimination Act 1975 (Cth) [RDA] against antisemitic hatespeech, evident in Toben v Jones [2003] FCAFC 137 and Jones v Scully [2002] FCA 1080. (Restrictions on vilification were found to be consistent with the implied right of political communication under the national constitution.)

David Marr in today's SMH comments that -
Though a good deal less than a day's pay for Alan Jones, the $10,000 he and 2GB were ordered to pay last week for vilifying Lebanese in Australia is the first punishment inflicted on either the talkback king or his station for attacks on Lebanese Muslims that reached their depths in the days before the Cronulla riots in the summer of 2005. ...

Trad's brawls with 2GB and Jones over nearly five years have seen his own reputation shredded in the NSW Supreme Court and Jones dogged by investigations and hearings, all strenuously defended by 2GB. These aren't over but at this point the scorecard reads: one devastating loss for Trad in the courts and two losses for Jones before tribunals. The legal fees paid by 2GB must now run into millions.

What's different this time is the political silence. When the Australian Communications and Media Authority ruled Jones broadcast material in the days before the Cronulla riots "likely to encourage violence or brutality", the prime minister, John Howard, leapt to the defence: "I don't think he's a person who encourages prejudice in the Australian community, not for one moment, but he is a person who articulates what a lot of people think".

But last week's decision by the NSW tribunal seems to have brought no high-powered supporters out of the woodwork. Perhaps they are busy with Christmas but the silence has been telling. Indeed, the decision has been only briefly reported but it's quite a tale, and the tribunal's 64-page critique of the broadcaster's methods looks destined to become prescribed reading for lawyers, students and anyone wanting to know how talkback radio works to excite its audience.
Marr notes that -
In the immediate aftermath of the riot, Trad himself came under attack from 2GB's Jason Morrison. Trad had attacked the role of the media at a public meeting and next day on air, Morrison called him "a disgraceful and dangerous individual who incited violence, hatred and racism" and went on to accuse Trad of being "responsible for more misinformation about the Islamic community ... than any other person".

Trad sued the station. In July this year Justice Peter McClellan of the NSW Supreme Court delivered a withering judgment that analysed in detail Trad's role as a spokesman for the Lebanese community and for Hilali. McClellan declared most of Morrison's criticisms of Trad were substantially true.

The judge accepted Trad was, indeed, a "disgraceful individual" because he "encourages others to support attitudes repugnant to the Australian community or encourages violence against women, homosexuals or various ethnic groups and supports child suicide bombers and acts of terror or when given the opportunity fails to condemn these views ..."
Trad had lodged a complaint with the NSW Anti–Discrimination Board in April 2005, alleging that Jones racially vilified him and "the entire Australian Muslim community and the entire Lebanese community" during broadcasts over several days. Jones has attracted criticism over the 'cash for comment' affair (ie money secretly paid to influence editorial opinion) - squibbed by the national regulator - plagiarism and his involvement in politics, highlighted in works such as Jonestown: The Power and The Myth of Alan Jones (Sydney: Allen & Unwin 2007) by Chris Masters and Cash For Comment: The Seduction of Journo Culture (Sydney: Pluto Press Australia 2000) by Rob Johnson.

Trad alleged that broadcast conveyed imputations that members of those communities -
are "despicable people", "unsuitable immigrants" and are "not suitable citizens for Australia"; that they "do not and cannot assimilate"; that they "behave in a manner similar to a badly behaved conquering army during war time"; that they are "prone to commit sexual assaults"; that they are "violent"; that they "violently take what they can from Australia"; that they are "obnoxious persons"; that the group is "akin to disgusting insects or small animals, such as rats or rodents"; that members of the group are "not human"; that they are "parasites", "have overrun the country", are destructive and "have invaded Australia"; that they are "unreliable citizens or residents" and are "an internal danger to the security of the country".
The Tribunal noted Jones' statement during one of those broadcasts that -
If ever there was a clear example that Lebanese males in their vast numbers not only hate our country but our heritage, this was it. They've got no connection to us. They simply rape, pillage and plunder a nation that's taken them in. No one who's written to me could believe what they saw. Without exception, you asked what did we do as a nation to have this vermin infect us like this. And what about the sacrifices of our war dead, made for this country to make it what it is today, and to have these mongrels laugh at them on national television?
Unsurprisingly, the Tribunal characterised that as "reckless hyperbole calculated to agitate and excite his audience", commenting that Jones "stimulates, urges and agitates his listeners and correspondents with his emotive editorials and, unsurprisingly, often receives as feedback highly inflamed and inflammatory comment more or less echoing his provocative commentary". It commented that -
Having listened to the broadcasts and having read the transcripts, the overwhelming impression Mr Jones's broadcasts left was that much of his material was imprudent, incautious, inflammatory and motivated by prejudice against those whom he apparently believed to be a threat to a culture to which he is very much attached. ...

His comments about "Lebanese males in their vast numbers" hating Australia and raping, pillaging and plundering the country, about a "national security" crisis, and about the undermining of Australian culture by "vermin" were reckless hyperbole calculated to agitate and excite his audience without providing them with much in the way of solid information.

The respondents in our view have not discharged the onus of establishing that Schedule A broadcast was either reasonable or made in good faith. Accordingly the defence contained in s 20C(2)(c) in not available.
The Tribunal concluded that -
Rather than dispassionately analysing the evidence and commenting on it, Mr Jones appears to have been induced or stimulated by his own preconceptions to place highly exaggerated and distorted interpretations on the few objective facts apparently known to him ...It is difficult to imagine circumstances in which it is reasonable for a commentator in a society ruled by law either directly or indirectly to endorse, or imply endorsement of, violent solutions to social issues or problems.
Jones' comments "could only be regarded as an incitement to listeners to hate and hold the Lebanese Muslim community and Lebanese males in serious contempt".

27 December 2009

Sodom & Begorrah

Yes, not a very original or generous title ... I'm reading the Dublin Archdiocese Commission of Investigation report while waiting for the rain to clear.

The Dublin Archdiocese Commission report was completed earlier this year, shortly after publication of the Report of the Commission to Inquire into Child Abuse (aka the Ryan Report) with which it is sometimes confused.

The Ryan Commission was "primarily an investigation of the treatment of many thousands of children, over many decades, in residential institutions, including industrial schools, run by various religious orders and congregations". It was concerned with establishing whether abuse (sexual or otherwise) occurred and with the nature and scale of that abuse.

It produced a chilling four volume report [PDFs here] that featured conclusions such as -
Physical punishment was severe, excessive and pervasive and by being administered in public or within earshot of other children it was used as a means of engendering fear and ensuring control. Sexual abuse was a chronic problem. For two thirds of the relevant period there was at least one sexual abuser in the school, for almost one third of the period there were two abusers in the school and at times there were three abusers working in Letterfrack at the same time. Two abusers were present for periods of 14 years each and the Congregation could offer no explanation as to how these Brothers could have remained in the School for so long undetected and unreported. ...

Children were emotionally and physically neglected throughout the relevant period and those children who could have benefited from family contact were deprived of this because of the remoteness of Letterfrack's location. ...

Children were left unprotected and vulnerable to bullying by older boys and this was stated to be a particular problem in Tralee both in terms of physical and sexual abuse. ... one Brother was cited by complainants and by Brothers who had been on the staff in Tralee as 'behaving inappropriately' with the boys. He was on the staff for 20 years and his behaviour was known to at least three Superiors who did not attempt to stop it. ...

The documents revealed that a system of harsh and pervasive punishment existed in Glin during the relevant period. The documents also revealed that Brothers with a known propensity for sexual abuse were transferred to Glin indicating a serious indifference to the safety of children. ...

The physical abuse of boys in Daingean was extreme. Floggings which were ritualised beatings should not have been tolerated in any institution and they were inflicted even for minor transgressions. Children who passed through Daingean were brutalised by the experience and some were damaged by it. ...

A high level of physical abuse was perpetrated by Religious and lay staff in Goldenbridge. The method of inflicting punishments and the implements used were cruel and excessive and physical punishment was an immediate response to even minor infractions. Children were in constant fear of beatings and in many cases were beaten for no apparent reason. A feature of this school was a rosary bead industry that was operated from the school. This industry was conducted in a way that imposed impossible standards on children and caused great suffering to many of them. It was a school that was characterised by a regime of extreme drudgery, both in terms of the rosary bead making and the daily workload of the children. ...

The system of large-scale institutionalisation was a response to a nineteenth century social problem, which was outdated and incapable of meeting the needs of individual children. The defects of the system were exacerbated by the way it was operated by the Congregations that owned and managed the schools. This failure led to the institutional abuse of children where their developmental, emotional and educational needs were not met.

The deferential and submissive attitude of the Department of Education towards the Congregations compromised its ability to carry out its statutory duty of inspection and monitoring of the schools. The Reformatory and Industrial Schools Section of the Department was accorded a low status within the Department and generally saw itself as facilitating the Congregations and the Resident Managers.
The Dublin Commission report is more restricted, concerned only with "the response of Church and State authorities to a representative sample of complaints and suspicions of child sexual abuse by priests in the Archdiocese of Dublin between the years 1975 and 2004".

The report thus comments that -
This Commission had no remit to establish whether or not abuse occurred although it is abundantly clear, from the Commission's investigation as revealed in the cases of the 46 priests in the representative sample ..., that child sexual abuse by clerics was widespread throughout the period under review. This Commission's investigation is concerned only with the institutional response to complaints, suspicions and knowledge of child sexual abuse.
The report notes that -
The Commission received information about complaints, suspicions or knowledge of child sexual abuse in respect of 172 named priests and 11 unnamed priests. (Some or all of the 11 unnamed priests may, of course, be included in the 172 named priests.) After a preliminary examination, the Commission concluded that 102 of these priests were within remit.

It is important in the Commission's view not to equate the number of complaints with the actual instances of child sexual abuse. While a significant number of the priests against whom allegations were made admitted child sexual abuse, some denied it. Of those investigated by the Commission, one priest admitted to sexually abusing over 100 children, while another accepted that he had abused on a fortnightly basis during the currency of his ministry which lasted for over 25 years. The total number of documented complaints recorded against those two priests is just over 70. In another case, there is only one complaint but the priest has admitted to abusing at least six other children.

The Commission examined complaints in respect of over 320 children against the 46 priests in the representative sample. Substantially more of the complaints relate to boys – the ratio is 2.3 boys to 1 girl.

Of the 46 priests examined, 11 pleaded guilty to or were convicted in the criminal courts of sexual assaults on children.
In responding to the question 'The priests – where they are now?' the report indicates that -
Of the 46 priests in the representative sample, 11 are or were members of religious orders. Four of these are dead; four are living within their orders with restrictions on their ministry and activities; two are living within their orders without restrictions and one has become estranged from his order and is living without restriction in another diocese. One priest belongs to a UK diocese and his whereabouts are unknown. Of the 34 priests from the Dublin Archdiocese, ten are dead, 20 are out of ministry and four are in ministry. Of the 20 who are out of ministry, 11 are being financially supported by the Archdiocese and are living under restrictions imposed by Archbishop Martin; nine are laicised.
The fallout has seen the resignation of a handful of senior clergy and expressions of shock in Rome. One might wonder whether similar abuse (and indifference on the part of the state) has occurred in Spain, Portugal and other nations. The report states that -
The volume of revelations of child sexual abuse by clergy over the past 35 years or so has been described by a Church source as a "tsunami" of sexual abuse. He went on to describe the "tsunami" as "an earthquake deep beneath the surface hidden from view". The clear implication of that statement is that the Church, in common with the general public, was somehow taken by surprise by the volume of the revelations. Officials of the Archdiocese of Dublin and other Church authorities have repeatedly claimed to have been, prior to the late 1990s, on "a learning curve" in relation to the matter. Having completed its investigation, the Commission does not accept the truth of such claims and assertions.

The Dublin Archdiocese's pre-occupations in dealing with cases of child sexual abuse, at least until the mid 1990s, were the maintenance of secrecy, the avoidance of scandal, the protection of the reputation of the Church, and the preservation of its assets. All other considerations, including the welfare of children and justice for victims, were subordinated to these priorities. The Archdiocese did not implement its own canon law rules and did its best to avoid any application of the law of the State. ...

The authorities in the Archdiocese of Dublin and the religious orders who were dealing with complaints of child sexual abuse were all very well educated people. Many had qualifications in canon law and quite a few also had qualifications in civil law. This makes their claims of ignorance very difficult to accept. Child sexual abuse did not start in the 20th century. Since time immemorial it has been a “delict” under canon law, a sin in ordinary religious terms and a crime in the law of the State. Ignorance of the law is not a defence under the law of the State. It is difficult for the Commission to accept that ignorance of either the canon law or the civil law can be a defence for officials of the Church. ...

In addition to their clerical education, many of those in authority in the Archdiocese had civil law degrees or occupied prestigious appointments in third level education. Monsignor Sheehy, Bishop O'Mahony and Bishop Raymond Field were qualified barristers. Bishop Kavanagh was Professor of Social Science in University College Dublin where both Archbishop Ryan and Archbishop Connell held high ranking academic posts. Despite their participation in civil society, it was not until late 1995 that officials of the Archdiocese first began to notify the civil authorities of complaints of clerical child sexual abuse.
And on it goes.

Undead and unread?

David Marr, in the April 2008 issue of The Monthly, notes the shamefully low sales of Patrick White and other modernist paragons -
White's last bestseller appeared 25 years ago at the end of an amazing final run that began with the Nobel Prize in 1973, included the mighty Twyborn Affair and climaxed in 1981 with the book that sold more than any other in his career, Flaws in the Glass. Even before his death a decade later, his reputation had begun its long, slow - but not uninterrupted - slide. These days, students and customers shy away from his novels. Alphabetical order doesn't help. He's found in bookshops on the bottom shelves. We buy him on our hands and knees.

... somewhere along the track, for reasons that go deeper than publishers' neglect, we stopped buying the distinguished writers of our own recent past. White was one of three Australians of his generation with big literary reputations at home and abroad. None sells strongly now. Nielsen BookScan, that pitiless surveyor of the trade, tells me that last year White's 13 titles in print sold only 2728 copies. Shirley Hazzard did better: her eight sold 4270 copies. Christina Stead's seven sold 199. That's not a misprint.
One hundred and ninety nine - The Man Who Loved Children, The Little Hotel, Miss Herbert (The Suburban Wife), Letty Fox: Her Luck ...

Meanwhile the Guardian offers UK figures from Nielsen BookScan on sales over the past decade. The 'top 100' include -
1 JK Rowling 29,084,999 (£225.9m)
2 Roger Hargreaves 14,163,141 (£26.6m)
3 Dan Brown 13,372,007 (£74.1m)
5 Terry Pratchett 10,455,397 (£77.2m)
6 John Grisham 9,862,998 (£65.9m)
7 Richard Parsons 9,561,776 (£49.2m)
8 Danielle Steel 9,119,149 (£51m)
9 James Patterson 8,172,647 (£53.8m)
10 Enid Blyton 7,910,758 (£31.2m)
11 Bill Bryson 7,409,656 (£61.2m)
12 Patricia Cornwell 7,355,180 (£49.8m)
13 Jamie Oliver 7,244,620 (£89.5m)
15 Ian Rankin 6,848,039 (£44.3m)
17 Alexander McCall Smith 6,609,779 (£40.6m)
20 Roald Dahl 6,169,406 (£33.8m)
22 Philip Pullman 5,544,376 (£35.8m)
23 Stephenie 'Twilight' Meyer 5,487,313 (£32m)
24 Maeve Binchy 5,476,134 (£37.6m)
25 J R R Tolkien 5,280,406 (£50.6m)
26 Delia Smith 5,269,783 (£58.7m)
27 Stephen King 5,268,577 (£38m)
29 Jeremy Clarkson 4,913,989 (£35.1m)
35 Lemony Snicket 4,220,508 (£23.9m)
36 Andy McNab 4,123,633 (£30.4m)
37 Ian McEwan 4,040,887 (£27.7m)
38 Wilbur Smith 3,871,484 (£30.1m)
39 Michael Connelly 3,785,330 (£23.5m)
40 Sebastian Faulks 3,782,665 (£27.5m)
45 William Shakespeare 3,333,670 (£17.8m)
49 Dave Pelzer 3,217,905 (£20.2m)
50 R L Stine 3,096,584 (£13.1m)
51 Catherine Cookson 3,020,751 (£16.8m)
52 Dean Koontz 3,010,242 (£17.5m)
53 W Awdry 2,991,572 (£9.9m)
55 Jeffery Deaver 2,972,145 (£16.9m)
57 Nick Hornby 2,956,544 (£19.6m)
58 Ben Elton 2,907,294 (£20m)
63 Dr Seuss 2,760,156 (£14.8m)
70 Nigella Lawson 2,616,955 (£39.2m)
71 Robert C Atkins 2,591,073 (£17.3m)
74 Clive Cussler 2,435,718 (£16.5m)
77 Penny Vincenzi 2,358,041 (£14.6m)
78 Charles Dickens 2,341,980 (£9.3m)
82 Jackie Collins 2,295,308 (£14.4m)
84 A A Milne 2,255,346 (£14.5m)
85 Paulo Coelho 2,229,564 (£16.3m)
86 Eric Carle 2,225,336 (£12.1m)
87 Louis de Bernières 2,221,481 (£15.3m)
96 Gordon Ramsay 2,094,376 (£23.4m)
98 Frank McCourt 2,055,939 (£14.9m)
100 Lyn Andrews 2,027,382 (£9.2m)
I'm reminded of benchmarks such as the Australian PLR data (selection here), with the 'top 50' Australian books (by times borrowed from a public library) over the period 1974/5 to 2005/6 including -
1 Bryce Courtenay Tommo & Hawk
2 Bryce Courtenay The Potato Factory
3 Paul Jennings Unbelievable! More Surprising Stories
4 Colleen McCullough The Thorn Birds
5 Paul Jennings Quirky Tails:More Oddball Stories
6 Paul Jennings Uncanny! Even More Surprising Stories
7 Colleen McCullough An Indecent Obsession
8 Bryce Courtenay Jessica
9 Bryce Courtenay Solomon’s Song
10 Paul Jennings Unmentionable! More Amazing Stories
Jennings reappeared on the list at rank 14, 16, 20, 21, 29, 35, 45 and 46. Courtenay was back at 22, 23, 27, 28 and 30. McCullough reappeared at 36 and 37. Four authors account for 30 of the 50 most-borrowed titles.

Revisualising Berne

William Patry notes disagreement about the proposed international treaty [PDF] regarding Improved Access for Blind, Visually Impaired and other Reading Disabled Persons.

The expectation is that the treaty would be consistent with, and indeed advance, the fundamental intellectual property treaties - such as Berne, Rome, and Agreement on Trade-Related Aspects of Intellectual Property Rights 1994 (TRIPS) - and human rights agreements such as the UN Convention on the Rights of Persons with Disabilities.

The treaty aims -
to provide the necessary minimum flexibilities in copyright laws that are needed to ensure full and equal access to information and communication for persons who are visually impaired or otherwise disabled in terms of reading copyrighted works, focusing in particular on measures that are needed to publish and distribute works in formats that are accessible for persons who are blind, have low vision, or have other disabilities in reading text, in order to support their full and effective participation in society on an equal basis with others, and to ensure the opportunity to develop and utilize their creative, artistic and intellectual potential, not only for their own benefit, but also for the enrichment of society.
The draft of the treaty, which has received broad support from Australia, indicates that -
Contracting Parties [ie nations] agree to undertake certain measures to enable full and equal access to information and communication for persons who are visually impaired or have other disabilities in accessing copyrighted works; ...

(c) Contracting Parties shall be free to determine the appropriate method of implementing the provisions of this Treaty within their own legal system and practice. (Language similar to TRIPS Article 1);

(d) Contracting Parties may, but shall not be obliged to, implement in their law more extensive protections for the visually impaired and reading disabled than are required by this Treaty, provided that such measures do no not contravene the provisions of this Treaty.
Key elements of the proposed treaty include -
4.(a) It shall be permitted without the authorisation of the owner of copyright to make an accessible format of a work, supply that accessible format, or copies of that format, to a visually impaired person by any means, including by non-commercial lending or by electronic communication by wire or wireless means, and undertake any intermediate steps to achieve these objectives, when all of the following conditions are met:
1. the person or organisation wishing to undertake any activity under this provision has lawful access to that work or a copy of that work;

2. the work is converted to an accessible format, which may include any means needed to navigate information in the accessible format, but does not introduce changes other than those needed to make the work accessible to a visually impaired person;

3. copies of the work are supplied exclusively to be used by visually impaired persons; and

4. the activity is undertaken on a non-profit basis.
(b) A visually impaired person to whom a work is communicated by wire or wireless means as a result of activity under paragraph (a) shall be permitted without the authorisation of the owner of copyright to copy the work exclusively for his or her own personal use. This provision is without prejudice to any other limitations and exceptions that a person is able to enjoy.

(c) The rights under paragraph (a) shall also be available to for profit-entities and shall be extended to permit commercial rental of copies in an accessible format, if any of the following conditions are met:
1. the activity is undertaken on a for-profit basis, but only to the extent that those uses fall within the normal exceptions and limitations to exclusive rights that are permitted without remuneration to the owners of copyright;

2. the activity is undertaken by a for-profit entity on a non-profit basis, only to extend access to works to the visually impaired on an equal basis with others; or

3. the work or copy of the work that is to be made into an accessible format is not reasonably available in an identical or largely equivalent format enabling access for the visually impaired, and the entity providing this accessible format gives notice to the owner of copyright of such use and adequate remuneration to copyright owners is available.
(d) In determining if a work is reasonably available in (c)(3), the following shall be considered:
1. for developed economies, the work must be accessible and available at a similar or lower price than the price of the work available to persons who are not visually impaired; and

2. for developing countries, the work must be accessible and available at prices that are affordable, taking into account disparities of incomes for persons who are visually impaired.
Consistent with provisions in Australian copyright law, Article 6 of the proposal ('Circumvention of Technological Measures') provides that signatories
shall ensure that beneficiaries of the exception provided by Article 4 have the means to enjoy the exception where technological protection measures have been applied to a work, including when necessary the right to circumvent the technological protection measure so as to render the work accessible.
Article 7 similarly provides that "Any contractual provisions contrary to the exception provided in Article 4 shall be null and void".

Patry tartly - and in my view perceptively - comments that -
A number of developing countries' positions were disappointing in their lack of meaningful support of the proposed treaty. Certainly if those making statements in actual opposition had available to them the minuscule amount the visually impaired have, their views would be quite different. Theirs is a failure both of compassion and a failure to recognize the positive role of copyright in furthering access. Some apparently are willing to sacrifice the neediest in order to hold on to more than they already deserve. It is easy to find reasons not to do something; the mark of a generous and compassionate soul is finding reasons to do something.

Bad Bears

From Edward Tenner's Our Own Devices: The Past and Future of Body Technology (New York: Knopf 2003) -
Bears cooperate to defeat other human technology; sow bears appear to send cubs into branches to dislodge carefully cached food, and young bears learn from observation how to break open automobile doors and penetrate the flimsy barrier separating the backseat from the food the owners thought they were protecting in the trunk. According to park rangers, who call the practice clouting, bears recognise specific brands and models, for example Honda and Toyota sedans, that are most vulnerable to attack, and use similar techniques on each model. When a particular model and color yield a rich cache of food, bears begin to attack similar vehicles every night. Mother bears show cubs how to pry open rear side doors by bending the door frame with their claws until it becomes a platform for reaching the backseat and trunk partition. Bears also brace themselves against neighbouring cars to break the windows of vans more readily.