07 March 2012

Industrial Property Statistics

The 2011 World Intellectual Property Indicators report [PDF] from WIPO indicates that patent and trade mark filings grew by 7.2% and 11.8% respectively in 2010 compared to growth of 5.1% in global gross domestic product. China and the United States (US) accounted for the greatest percentage of the increased filings; IP filing growth by Germany, the UK and France exceeded the GDP growth rate of the those economies in 2010.

The global number of patent applications was 1.98 million, an historical high. the number of trade mark filings reached 3.66 million, up by 11.8% from 2009. The US patent office saw 7.5% growth in applications in 2010 (after two years of near zero growth), with 490,226 applications - ahead of China's patent office with 391,177 filings and its Japanese counterpart with 344,598 filings. WIPO comments that "this mirrored wider economic trends in a year in which China overtook Japan to become the second largest economy in the world, as measured by GDP". Patent applications were up by 24.3% in China, by 12.2% in the European Patent Office, 11.9% in Singapore and 10.2% in the Russian Federation. WIPO notes in the 212 page compilation that filings in China increased from 63,450 in 2001 to 391,177 in 2010.

A sense of the global intellectual property economy is provided by looking at WIPO's statistics on who filed where. Filing by Chinese residents (293,066 applications) overtook those by Japanese residents (290,081 applications), with residents of Japan (172,945 applications) and the US (178,355 applications) filing the largest number of patent applications outside their own country. Residents of Canada, the Netherlands, Israel and Switzerland filed more than 80% of their total applications abroad, in contrast to residents of China, who filed only 5% of applications abroad.

WIPO's breakdown of the figures by industry indicates that -
computer technology, electrical machinery, audio-visual technology and medical technology accounted for the largest shares of patent filings worldwide. However, the relative importance of different technology fields varied substantially across countries. Broadly defined information communications and technologies (ICTs) accounted for the largest share of filings in Finland and Sweden, with pharmaceuticals more prominent in Belgium, India and Switzerland.
WIPO estimates that the global number of “potentially pending” patent applications in 2010 was 5.17 million in 2010, down 3.3% on 2009, with Japan's patent office of Japan reporting a 20% decline in pending applications. It's unclear whether the decline's attributable to improved efficiency, additional resourcing in the office or other matters.

The report provides no meaningful measure of patent quality and the number of applications is a problematical indication of the validity of those applications, of national competitiveness or the effectiveness of nation innovation/education policies.

WIPO Director General Francis Gurry commented that the "upturn" in filings shows that enterprises have been continuing to innovate -
This can help to create new jobs and generate prosperity once macroeconomic stability is restored, [although] if economic conditions were to deteriorate sharply in the short term – as happened in 2009 – companies might be forced to curtail or abandon their investments in innovation, stifling an essential source of growth.
Ithe number of design applications - eg under the Designs Act 2003 (Cth) - is reported by WIPO as increasing by 13%, primarily due to "high growth in China which accounted for 83% of total growth". Globally there were 637,000 resident and 86,700 non-resident applications. The number of designs applications were up by 14% in Australia, 12.6% in the US, 20% in Canada and 20% in China.

Globally there were an estimated 3.66 million trade mark applications in 2010 (2.78 resident and 0.88 million non-resident applications), with China's trade mark registrar accounting for three-fifths of the 11.8% growth in applications. The number of applications for marks were up by 13% in France (13.1%), 11.5% in Brazil and 11.4% in Russia. WIPO comments that -
middle-income countries filed a higher number of trademark applications per GDP as compared to high-income countries. Chile filed 218 trademark applications per billion GDP in 2010. Bulgaria (166), Ecuador (157) and Viet Nam (128) also show high ratios of trademark filings per GDP, exceeding those for Germany (72), Japan (39) and the US (22).
The significance of that spread is unclear.

e-Books, Webscraping and Deposits

The national Attorney-General’s Department is seeking comments regarding Australia's statutory deposit (aka legal deposit) regime under the Copyright Act 1968 (Cth).

The Department indicates that it is concerned with -
a proposed model to extend the legal deposit obligation in section 201 of the Copyright Act 1968 in relation to material deposited with the National Library of Australia (the National Library). Existing obligations to deposit print-based library materials under section 201 are not under consideration.

In 2007, the Attorney-General’s Department and the then Department of Communications, Information Technology and the Arts released the 2007 Discussion Paper on the Extension of Legal Deposit. That paper sought views on extending legal deposit to electronic material, broadcasts and audiovisual material and on the National Film & Sound Archive of Australia (NFSA) also being made a repository institution for legal deposit.

This current paper is focussed solely on a proposal for an extended scheme in the Copyright Act for the National Library and is without prejudice to further consultation to be conducted by the Office for the Arts on legal deposit of audiovisual material to the NFSA.
The proposed scheme is similar to that in several countries and in practice would enshrine the NLA's PANDORA web publishing initiative (which has involved the Library gaining permission from copyright owners and thence archiving chunks of the web, including several hundred thousand words by the author of this blog).

The nine page consultation paper indicates that the proposed scheme
distinguishes between offline physical format electronic publications and online electronic publications. Essentially, the current mandatory deposit obligations would be extended to physical format electronic publications, while online electronic publications would be subject to a deposit on demand basis.

A reason for making a distinction between two classes of electronic publications is that this recognises the differences between material in a physical form and material in a virtual form and tailors the deposit requirements accordingly. It also implements a selective scheme for online material, recognising the large volume of material that is potentially eligible for inclusion in the legal deposit scheme.
Under the new regime the NLA would have authority for statutory deposit of "physical format electronic publications" (eg those on DVDs or CD-ROMs). Publishers would be required to provide the NLA with a free copy without a Technological Protection Measure (TPM).

The proposal encompasses selective but mandatory archiving and electronic provision by the NLA of "online electronic publications on a selective basis". The paper indicates that -
• On notification from the Director-General of the National Library, the publisher making the material available online would be required to deposit.
• Where the material is made available online, subject to access controls or a TPM, the publisher will be required to deposit the material unencumbered.
• In deciding categories of electronic material that will be subject to new deposit obligations, the Director-General will need to consider a range of factors including cultural importance and collecting priorities.

Material of this kind includes: scholarly e-journals, e-magazines, ephemeral publishing such as e zines, online newspapers, e-books, blogs, websites, and conference proceedings.
The paper sensibly notes that -
A reason for restricting deposit requirements to a deposit on demand basis is that it would be impractical to place a deposit obligation on all publishers on the internet. The current requirement in section 201 applies to ‘published’ library material. Under copyright law, ‘published’ means a work has been ‘supplied to the public’. In the context of the internet, most works made available online without restrictions may be considered ‘published’ for the purposes of the Copyright Act. As such, an unrestricted obligation to deposit electronic material would fall on nearly all users that place material online. This would result in the collection of an excessive amount of material and would raise significant compliance and administration issues.
Who would have access to the publications that the NLA has scraped? The paper succinctly indicates that "As with the current scheme, public access to material deposited through legal deposit would be subject to the relevant provisions of the Copyright Act". There;'s some vagueness about NLA plans to make the electronic publications available outside its Canberra premises, although the state libraries, university libraries and other venues are likely to argue for 'controlled' access through their premises. The paper notes that -
Public access to deposited material: In 2007, a number of submissions argued that in order to avoid potential conflict with the commercial interests of publishers, access to deposit material should be restricted. However, libraries and library associations argued that access should be in keeping with existing copyright provisions. It is proposed that the National Library will be able to be make deposited material available to the public within the existing copyright framework for libraries and archives.

Use of deposited material by the National Library: It is proposed that the National Library may use deposited material in accordance with relevant exceptions to copyright in the Copyright Act (such as preservation copying).
The paper concludes with a reference to penalties -
The current scheme imposes a penalty of $100 on any publisher that does not provide the National Library with their library material within one month. Under an extended scheme, a similar penalty provision, perhaps expressed in penalty units, would apply where a publisher does not deposit within a specified period.

06 March 2012

Fatherhood and Theory

'Innocence Interrupted: Reconstructing Fatherhood in the Shadow of Child Molestation Law' (USC Legal Studies Research Papers Series No. 12-5) by Camille Rich comments that -
This Article explains why child molestation law should be regarded as parenting law, as child molestation statutes formally categorized as criminal statutes increasingly are being used to regulate parents’ behavior as they engage in mundane childcare practices traditionally deemed the domain of civil law regulation. The article further shows how these child molestation statutes end up being interpreted and enforced in ways that reinstantiate traditional gender norms. This Article charts the problem by showing how the inquiry authorized by today’s broad, far reaching child molestation statutes invites and even requires judges, juries other legal decision-makers to rely on gendered notions of cultural “common sense” to resolve child molestation cases involving fathers providing seemingly mundane intimate care. The Article explains why child molestation statutes are interpreted in the intimate care cases in ways that enforce gendered parenting norms, showing that legal decision-makers turn to these stereotypes because the concepts of sexual injury at the heart of child molestation law are radically undertheorized. The Article considers the role feminist legal theory has played in this undertheorization problem, addresses the stumbling blocks to future feminist theorizing on this issue, and examines the material consequences of the current undertheorized concepts of sexual injury for the practice and experience of fatherhood.

Panpsychic

Posts in this blog have been dismissive of World Futures, the journal under the auspices of millenarian, education entrepreneur and communication-with-the-dead fan Ervin Laszlo.

The latest issue of that journal (Volume 68, Issue 2) - which in Australia's official scholarly rating system ranked higher than some credible law journals - features a change of name. World Futures was tagged The Journal of General Evolution; it's now The Journal of General Education.

The preceding issue of World Futures was largely devoted to "introducing" Laszlo's Giordano Bruno GlobalShift University, the much-renamed institution originally named WorldShift University.

Alas, it's still a journal of the bizarre. One article, by Jeff Jenkins, is titled 'Nature Awareness and Panpsychic Ritual Gratitude: Revitalizing Our Ancestral Heritage'. Oh dear.

What does "panpsychic ritual gratitude" involve?
This article suggests that nature awareness and panpsychic gratitude transform a wounded mechanistic reductionist worldview into creative regenerative participation with the more-than-human world. Four practical keys are shared that have proven to be helpful in resuscitating the indigenous heart and cultivating greater empathy, love, compassion, and insight into the metaphoric resonance and teachings of the natural world. This inquiry situates the human family as vital consciousness tendrils of the living planet in this critical time of shifting climate patterns, loss of biodiversity due to human presence, geopolitical conflicts, and other challenges as we step into the Ecozoic Era.
"Vital consciousness tendrils"? Not too surprising in an "academic" journal that's recurrently espoused reincarnation, dowsing, remote healing and other parapsychology along with a jurisprudence of 'quantum holism'.

04 March 2012

Blagging

In commenting on the imprisonment of private detectives for blagging (after conviction under the Fraud Act rather the under the Data Protection Act) the UK Information Commissioner has stated that -
The scourge of data theft continues to threaten the privacy rights of the UK population. Whilst we welcome today’s sentencing of the private investigator, Graham Freeman, and his three accomplices, the outcome of the case underlines the need for a comprehensive approach to deterring information theft. If the Serious Organised Crime Agency had been restricted to pursuing this case solely using their powers under the Data Protection Act then these individuals would have been faced with a small fine and would have been able to continue their activities the very next day. This is not good enough.

Unscrupulous individuals will continue to try and obtain peoples’ information through deception until there are strong punishments to fit the crime. We must not delay in getting a custodial sentence in place for section 55 offences under the Data Protection Act.
Blagging - aka pretexting - has gained major attention in the UK and Australia in relation to abuses by/for journalists, highlighted for example in Various Claimants v News Group Newspapers Ltd & Anor [2012] EWHC 397 (Ch); Bryant & Ors, R (on the application of) v The Commissioner of Police of the Metropolis [2011] EWHC 1314 (Admin) ; Coulson v Newsgroup Newspapers Ltd [2011] EWHC 3482 (QB), Coogan and Phillips v News Group Newspapers and Mulcaire [2012] EWCA Civ 48 and Andrew v News Group Newspapers Ltd & Anor [2011] EWHC 734 (Ch). Those abuses have led to calls for tighter media regulation, whether through some sort of industry body or through a government agency (as highlighted in the recently-noted Finkelstein report).

The Commissioner's site indicates that his Office
worked with the Serious Organised Crime Agency (SOCA) to secure today’s convictions under the Fraud Act. The ICO advised SOCA on the data protection issues connected to the case and will now be provided with additional material from the SOCA for further investigation. The ICO does not rule out taking further action against the organisations that received this information, if it becomes clear that they failed to comply with the requirements of the Data Protection Act.
In September last year, in calling for custodial sentences for blagging and commenting that blagging on behalf of debt collection services was as bad as that for News of the World the Commissioner stated that -
There has been a lot of coverage in the media about the section 55 offence – or ‘blagging’ personal information, as it is known. But this offence is not just about private investigators finding out about celebrities’ hospital appointments. This crime has the potential to devastate ordinary people’s lives. The existing paltry fines are not enough to deter. The government must show they take this problem seriously by commencing the legislation Parliament put in place in 2008. If courts were able to impose the full range of sentences from fines to jail terms, including other sanctions such as community service where appropriate, we would at last have an effective deterrent to stop people engaging in this criminal activity.

Blagging isn’t hacking, but the issue has got caught up in the controversy over press behaviour. Unfounded concerns about press freedom were a distraction in 2008 and they should never have halted the introduction of stronger sanctions. They should not delay any further the commencement of the powers needed to combat this modern scourge.”

Section 55 of the Data Protection Act makes it an offence to “knowingly or recklessly, without the consent of the data controller, obtain or disclose personal data." The current penalty for committing the offence is a maximum £5,000 fine if the case is heard in a Magistrates Court and an unlimited fine in a Crown Court.
SOCA indicates that
Four private investigators have pleaded guilty to stealing confidential information and selling it to paying clients.

Philip Campbell Smith, Adam Spears and Graham Freeman used the services of Daniel Summers, an expert in a technique known as blagging, to acquire personal and financial information on behalf of corporate clients and private individuals.

Searches during SOCA's investigation found quotes for Summers' services including £200 for obtaining a monthly bank statement. On his arrest Summers said "I know why you are here, this is massive," and "I'm in the biggest s**t imaginable."

Blagging is the art of bypassing security measures through skilled persuasion and impersonating someone else. Summers targeted banks, financial institutions, mortgage providers, government agencies and law enforcement databases. Evidence showed the men warning each other from time to time when their activity risked being noticed.

SOCA's investigation into the four men began when it received intelligence that Summers' computer may have had information about criminal activity stored on it. When Summers put his computer up for sale, an undercover SOCA officer succeeded in buying it from him for £590 cash. Despite Summers' attempts to erase the hard drive, SOCA's forensic analysts were able to retrieve a number of files showing Smith, Spears and Freeman tasking Summers to obtain confidential information in exchange for payment. Investigators collected further documentary and computer evidence from the other three men when they were arrested in May 2009.

SOCA's focus during the investigation was criminal conspiracy. However in recognition of the fact that the operation might also uncover information relevant to other authorities, SOCA worked in partnership with a number of bodies including the Information Commissioner's Office. SOCA will now hand over any such information to its partners to determine whether further action is appropriate.

Too Much Sharing?

In the UK the Observer reports on claims that "the police or security services supplied information to a blacklist funded by the country's major construction firms that has kept thousands of people out of work over the past three decades".
The Information Commissioner's Office (ICO) has revealed that records that could only have come from the police or MI5 have been discovered in a vast database of files held on 3,200 victims who were deemed leftwing or troublesome.

The files were collected by the Consulting Association, a clandestine organisation funded by major names in the construction industry.

Its database was seized nearly three years ago, but the extraordinary nature of the information held has only now emerged, following an employment tribunal for one of the victims, Dave Smith, a 46-year-old engineer who had a 36-page file against his name and was victimised repeatedly for highlighting safety hazards on sites, including the presence of asbestos.

David Clancy, investigations manager at the ICO, told the central London tribunal adjudicating on Smith's claims against construction giant Carillion that "there is information on the Consulting Association files that I believe could only be supplied by the police or the security services".

Speaking to the Observer, Clancy added: "The information was so specific and it contained in effect operational information that wouldn't have formed anything other than a police record."
The article goes on to comment that -
The scandal will be thrown open to further public exposure in the coming months as a class action by 100 victims against at least 39 companies is set to be pursued in the high court by Hugh Tomlinson QC, currently counsel for several of the phone-hacking claimants. The revelations will inevitably raise fresh questions about the probity of the police in a week in which its relationship with major news corporations, and News International in particular, has come under sharp focus. Last week the Leveson inquiry heard that the police were investigating a "network of corrupt officials" as part of their inquiries into phone hacking and police corruption.

Clancy said he was unable further to trace the specific sources of the information held in the Consulting Association files because it touched on individuals living across the country and stretched over three decades.

He added that the relationship between the Consulting Association and the police and security services appeared to have been nurtured when the organisation went under an earlier guise as the Economic League, at a time when the state was keen to liaise with major building firms to discover as much as it could about Irish construction workers amid the threat of IRA terrorism.

John McDonnell MP, who first raised the issue of blacklisting a decade ago, said he would demand a debate in parliament on what he described as collusion. "I am outraged at the systematic abuse of people's rights. This has destroyed people's lives, broken up families, ensured that people have not been able to earn a living. It has devastated people year after year, and nobody has listened to us. No one has been willing to believe the extent to which there has been collusion between police, security services and companies. It is all about the ability of companies to exploit workers and destroy anybody who stands up against them."

The existence of the secret blacklist was first exposed in 2009, when ICO investigators from the Information Commissioner's Office raided an unassuming office in Droitwich, Worcestershire.

The investigators uncovered an extensive database that was used by construction firms to vet workers they deemed to be trade unionists and troublesome – usually trade unionists. More than 40 construction firms, including Balfour Beatty and Sir Robert McAlpine, had been funding the confidential database, which recorded workers' trade union activities and conduct at work.

The Consulting Association was closed down and a 66-year-old private investigator, Ian Kerr, was fined £5,000 for administering the database, although the construction firms escaped prosecution. At Smith's tribunal, Carillion admitted that two of its subsidiaries covertly supplied information to the database to "penalise" Smith for being a trade unionist, even though he had "reasonably brought health and safety concerns to their attention".
In Australia there have been sporadic expressions of concern over formal and informal sharing of information by police and infrastructure groups. One example is that of the relationship between the Victoria Police and AquaSure (the international consortium building the Wonthaggi desalination plant). The 2010 report by the state's Commissioner for Law Enforcement Data Security on the Review of Victoria Police Major Development MOUs suggested that there are substantive grounds for concern.

Biometrics

Last month Australia's national Privacy Commissioner received a letter [PDF] from the Biometrics Institute (ie the biometrics industry advocacy body) proposing revocation of the 2006 Biometrics Institute Privacy Code.

That Code was developed by the Institute under Part IIIAA of the Privacy Act 1988 (Cth), which as part of the co-regulatory regime embodied in that Act provides for organisations and industries to have - and enforce - their own privacy codes. The private codes supersede the National Privacy Principles (NPPs) that would otherwise bind the organisations subscribing to the particular codes. Code development involves a representative organisation applying under s18BA of the Act to the Privacy Commissioner (now part of the national Information Commissioner's office) for formal approval of a privacy code. Under s 18BE(1)(a) the Commissioner may revoke approval of a privacy code on his/her own initiative. Under s18BE(1)(b) the code may also be revoked on the basis of an application by an organisation bound by the code.

The Institute's letter requested that the Commissioner exercise his power to revoke the Biometrics Institute Privacy Code on his own initiative. That mechanism is interesting and may reflect past practice where the Office of the Privacy Commissioner appears to have solicited requests by particular stakeholders, a closeness that for some observers raises questions about potential conflicts involving a government agency that has both a policymaking and deliberative function.

In response to the letter the Privacy Commissioner has invited public comment on the proposed revocation of the Code, issuing a consultation paper to assist comments. Unfortunately the consultation paper, consistent with similar Privacy Commission documents, is very thin ... so thin as to have little value to most readers.

The Code aims to -
• facilitate the protection of personal information provided by, or held in relation to, biometric systems;
• facilitate the process of identity authentication in a manner consistent with the Privacy Act and the NPPs; and
• promote biometrics as privacy enhancing technologies (PETs)
The Institute seeks revocation of the Code on the basis that -
• The subscription rate from Institute members has been low (a mere four of the Institute's members are subscribed to the Code)
• The Code has become less relevant in the context of other privacy awareness raising activities and materials developed by the Institute
• The Code has become less relevant in the context of the changing environment of privacy threats in relation to biometric technology
• The Institute wishes to pursue a more flexible targeting of privacy awareness programs and policies
• The Institute is seeking to build a privacy promotion strategy that better reflects the diversity of its members
• The Institute seeks to move away from promoting a culture of privacy protection in terms of basic compliance, towards promoting it as leading practitioners.
Comments on the proposed revocation should be submitted by 5pm 21 March 2012.

The consultation raises questions about the efficacy of the various privacy codes. Do we indeed need discrete industry-specific codes, rather than a more coherent statement of principles (supplemented by operational guidance) and meaningful enforcement on the part of the Information Commissioner's office?

The Institute's site indicates that -
The Biometrics Institute Privacy Code was designed for the protection of Institute members and their clients. It has been approved by the Australian Privacy Commissioner in 2006 and is part of the Australian Privacy Act. It enables you to guarantee that you protect your clients’ privacy in a professional manner. It is your benchmark and your evidence that you have in place systems and procedures that comply with Australia’s Privacy Act.

Due to the delays in finalising the new privacy legislation in Australia and the more international outreach of the Biometrics Institute, we have decided to be proactive and upgrade our suite of privacy protection and awareness measures through a Privacy Charter and other related information. The Biometrics Institute has therefore requested a review of the Code and the potential need to de-register it.
The same site indicates that the Institute has developed a Biometrics Privacy Charter and a Privacy Awareness Checklist, as follows -
Biometrics Privacy Charter

The Biometrics Institute has launched a Biometrics Privacy Charter in November 2011. It has been designed by the Biometrics Institute to provide a universal guide for suppliers, end users, managers and purchasers of biometric systems. It is the public’s assurance that the biometric managers have followed best practice privacy principles when designing, implementing and managing biometric based projects.

Members of the Biometrics Institute can access this Privacy Charter and become Supporters who demonstrate a commitment to privacy protection.

Biometrics Institute Privacy Checklist (PAC)

The Biometrics Institute launched its Privacy Awareness Checklist (PAC) for members of the Biometrics Institute in May 2010 to assist members in a quick an easy way to assess privacy impacts when using biometrics. It provides a snapshot in time of where the organisation sits in regards to privacy.

Members can access this PAC.
On a quick examination the Institute's commitment to transparency does not appear to be truly heartfelt, as neither the Charter nor the Checklist appear to be readily available to non-members. (Membership starts at $704 as of this year). The value to the public of a somewhat inaccessible document - "the public's assurance" - is unclear.

And the Code? Given that the Institute's moved on the Code is not readily discernible on that organisation's site (although it can be found via a link on the Privacy Commissioner's increasingly moribund site). It is most easily found as the Schedule in the Approval of the Biometrics Institute Privacy Code (F2006L02406) in the Commonwealth Register of Legislative Instruments, accessible through a link in the consultation paper.

Badmouth

In SingTel Optus Pty Ltd v Australian Football League [2012] FCA 138 Edmonds J of the Federal Court of Australia has dismissed Optus' application for declaratory relief and interim injunctions against the AFL and its Chief Executive Officer Andrew Demetriou.

The application resulted from comments by Demetriou in an interview with the Herald Sun in connection with SingTel Optus Pty Ltd v National Rugby League Investments Pty Ltd (No 2) [2012] FCA 34 noted here. Optus noted Demetriou's comments that Optus was engaging in conduct that was akin to stealing and 'lifted' content owned by sporting bodies. The court noted comments such as
The thought of Optus deciding to lift our content and not pay for it, and pretend and purport to be doing it for the consumer, is a complete disgrace. ...

They are not paying for it; they are lifting it. It is akin to stealing and all it will do is that if sports can't rely on that revenue, they will slug the consumers. ...

I think they [politicians] are looking for a way for the legislation to catch up with technology ... It would be far more preferable if Optus just dropped this shenanigans and into the real commercial world and starting just paying for things.
Optus claimed the comments amounted to misleading and deceptive conduct.

The court disagreed, finding that Optus' application was misconceived because Demetriou's statements were not made in trade or commerce and - even if the statements amounted to conduct in trade or commerce - were not likely to mislead or deceive. There was no contravention of s 18 of Schedule 2 of the Australian Consumer Law.

Edmonds J stated that -
The statements complained of were part of a wide-ranging interview with Mr Demetriou covering a variety of topics, not all of them having to do with the AFL at all. To the extent that they concerned the AFL’s commercial interests, they consisted of statements of opinion by Mr Demetriou about the health and governance of the game and the member clubs of the AFL. To the extent that they concerned Optus, they were value judgments about the integrity and conduct of Optus in relation to the recording of content in respect of which the AFL owned the copyright.

The comments made by Mr Demetriou were part of an on-going narrative about media rights to sporting events in the context of ongoing technological change. They were a part of a narrative in which Optus itself is a participant, along with other organisations, commentators, politicians, legal professionals and academics. Mr Demetriou is engaged in a campaign to try and persuade all sides of the political framework, as well as harness support from as wide a spectrum of Australian sporting bodies as is possible, that the Copyright Act 1968 (Cth) ought to be amended in the light of the decision in Optus v NRL.

Notwithstanding, they are not “in trade and commerce” as that phrase must be understood following Concrete Constructions (NSW) Pty Limited v Nelson [1990] HCA 17; (1990) 169 CLR 594. This is best summed up in the plurality judgment at 603, 604:
[I]n the context of Pt V of the Act with its heading ‘Consumer Protection’, it is plain that s. 52 was not intended to extend to all conduct, regardless of its nature, in which a corporation might engage in the course of, or for the purposes of, its overall trading or commercial business. Put differently, the section was not intended to impose, by a side-wind, an overlay of Commonwealth law upon every field of legislative control into which a corporation might stray for the purposes of, or in connection with, carrying on its trading or commercial activities. What the section is concerned with is the conduct of a corporation towards persons, be they consumers or not, with whom it (or those whose interests it represents or is seeking to promote) has or may have dealings in the course of those activities or transactions which, of their nature, bear a trading or commercial character. Such conduct includes, of course, promotional activities in relation to, or for the purposes of, the supply of goods or services to actual or potential consumers, be they identified persons or merely an unidentifiable section of the public. In some areas, the dividing line between what is and what is not conduct ‘in trade or commerce’ may be less clear and may require the identification of what imports a trading or commercial character to an activity which is not, without more, of that character.”
Edmonds J went on to state, in relation to the finding that any conduct was not “misleading or deceptive or likely to mislead or deceive”, that -
... the issue in this proceeding is not the truth of the statements that Optus’ behaviour is “akin to stealing”, or the statement that Optus is “lifting” content owned by sporting bodies. The issue is whether the conduct of Mr Demetriou in making those statements is likely to mislead or deceive; to lead one into error. This requires a characterisation of the conduct as a whole, taking into account all relevant circumstances and not the taking of particular words out of context.

The statement that Optus is “lifting” content owned by AFL was the opinion of Mr Demetriou and no doubt it was honestly held. In the circumstances of this case, such a statement is incapable of constituting misleading and deceptive conduct: Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd [1984] FCA 180; (1984) 2 FCR 82 at 88; Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304 at 318–321, 341–342.

Alternatively, it was nothing more than, and could be understood as nothing more than, a vernacular or shorthand description of what Optus is incontrovertibly doing. On any view, Optus has established an infrastructure that (at the request of a customer) records the broadcast of an AFL game and then (at the request of the same customer) replays it. The fact that Rares J held that, for the technical purposes of particular provisions of the Copyright Act, it is the customer and not Optus that “makes” a cinematographic film and it is the customer and not Optus who then “communicates” that film, does not alter the fact that Optus’ equipment records, and Optus’ equipment then streams to its customers, the broadcast of games in which AFL holds the copyright.

The statement that Optus’ behaviour is “akin to stealing” is not misleading or deceptive for the following reasons:
(a) it was clearly a statement of Mr Demetriou’s opinion and, again, was honestly held. It was not and did not purport to be a statement of fact;

(b) the basis for the opinion was clearly set out in the surrounding words that provide the context in which the statement must be considered. That context includes the fact that Optus’ equipment records, and Optus’ equipment then streams to its customers, the broadcast of games in which AFL holds the copyright. It also includes the fact that Optus does not pay anything to the AFL for the content that Optus makes available for its own commercial gain to its customers.
Read as a whole, in the context of the interview given, and in light of the manner in which Optus’ TV Now service operates, Mr Demetriou’s statements are not misleading or deceptive.
One student aptly commented that the various parties would be better occupied developing superior product rather than reaching for barristers.

Shame

'Revisiting Privacy and Dignity: Online Shaming in the Global E-Village' by Anne Sy Cheung comments that -
Using public shaming as a form of criminal sanction has remained a controversial topic. Yet in the Internet era, we do not need to wait for state approval to administer this form of punishment. Rather, online shaming against those who have violated social norms is proliferating fast in cyberspace, where the personal information of targeted individuals is often disclosed and displayed for the purpose of humiliation and social condemnation. Whether or not the victims themselves are perpetrators of wrongdoing in the first place, this article argues that online shaming is a blatant form of attack on a person’s innate dignity, and is a violation of the right to privacy. Drawing on recent jurisprudence from both the English Courts and the European Court of Human Rights on the relationship between the right to private life and dignity, the discussion will explain how the role of dignity has informed the development of privacy right where its value has played a distinctive role. This refers especially to the context in which the plaintiffs could be said to be partly at fault as transgressor-victims. In this article, the term ‘dignity’ refers to one’s innate personhood, integrity and self-respect.
She concludes that -
It was Marshall McLuhan, writing in the 1960s on the phenomenon of electronic media, who already had foretold that we would live in a state of ‘new electronic interdependence’ in a ‘global village.’ To him, the speed of this electronic media would wire us up to act and react to global issues instantaneously, continuously and collectively. McLuhan warned us that the global village has every potential to become a place where totalitarianism and terror may rule due to the sacrifice of individualism and lack of in-depth reflection. He left us with a piece of advice, asking us to be vigilant towards the dynamic that technology would bring and to the impact of the influence of the media on our social interaction, lest we would find ourselves locked ‘in a small world of tribal drums, total interdependence, and superimposed co-existence.’

Sadly, McLuhan’s prophesy holds true for the 21st century cyber global village because we have seen that the Internet is replete with examples of those tribal drums in the form of online shaming. New information communication technologies have led to an increasing popularity and fascination with capturing others’ images, exposing others’ wrongdoing, and bringing the people concerned to a brand of online justice in the form of a manhunt which, in both the cyber and real world, can easily and quickly spin out of control, often descending into various forms of shaming, humiliation, character assault, and even harassment. Hence, a distorted form of freedom of expression is enjoyed by an anonymous online mob at serious heavy cost to the dignity of others, a core element of one’s privacy. As a result, this practice of online shaming has raised unanswerable ethical and legal questions. In our attempt to search for legal guidance from the European Court of Human Rights, we have noticed an emerging jurisprudence on the recognition of one’s innate dignity and its relation with privacy regardless of the wrong of the transgressor-victim. Yet in all those cases, the defendants could be clearly identified, while the perpetrators of online shaming are likely to be an anonymous crowd from different jurisdictions. Indeed, another research project would be necessary to do justice to the issues of accountability and responsibility but it is hoped, at least, that this article has laid the ground work for the recognition of a legal right to privacy, based on the right to dignity.

Dignity has been described vividly by Reaume as a guardian angel hovering over our laws. It is, perhaps, time now to call upon our legal guardians for protection in favour of a proper responsible participation in the E-village.

Media Inquiry

The Independent Inquiry into the Media and Media Regulation (aka Finkenstein inquiry) has released its 476 page report [Doc].

The report, by Ray Finkelstein QC and media academic Matthew Ricketson, initially considers "Media codes of ethics and accountability", commenting that -
1. There is common ground among all those who think seriously about the role of the news media and about journalistic ethics that:
• a free press plays an essential role in a democratic society, and no regulation should endanger that role
• a free press has a responsibility to be fair and accurate in its reporting of the news
• a free press is a powerful institution which can, and does, affect the political process, sometimes in quite dramatic ways
• a free press can cause harm—sometimes unwarranted—to individuals and organisations
• a free press should be publicly accountable for its performance
• codes of ethics regarding accuracy, fairness, impartiality, integrity and independence should guide journalists and news organisations.
2. There is less consensus on how this accountability should be enforced.

3. In Australia for newspapers there are several existing mechanisms of self-regulation:
• the adoption of ethical codes or standards which at a minimum impose obligations of fairness and accuracy
• the appointment by some newspapers of an ombudsman or readers’ representative to handle complaints from the public
• the establishment by the newspaper industry of the Australian Press Council (APC) to handle complaints from the public and monitor professional standards.
4. Broadcasters (radio and television) have additional regulation. They are required to observe standards both approved and overseen by the Australian Communications and Media Authority (ACMA).

5. There is, however, external regulation which applies to all news media. They must operate within the laws of the land, most importantly for the media, the laws of defamation and contempt.

6. I have come to the conclusion that these mechanisms are not sufficient to achieve the degree of accountability desirable in a democracy:
• Of the existing self-regulation measures, only one or two newspapers have appointed an ombudsman or readers’ representative.
• Online news publications are not covered.
• The most important institution, the APC, suffers from serious structural constraints. It does not have the necessary powers or the required funds to carry out its designated functions. Publishers can withdraw when they wish and alter their funding as they see fit.
• ACMA’s processes are cumbersome and slow.
• If legal proceedings against the media are called for, they are protracted, expensive and adversarial, and offer redress only for legal wrongs, not for the more frequent complaints about inaccuracy or unfairness.
7. The problems with both the external and self-regulatory mechanisms are inherent, and cannot be easily remedied by piecemeal measures.

8. I therefore recommend that a new body, a News Media Council, be established to set journalistic standards for the news media in consultation with the industry, and handle complaints made by the public when those standards are breached. Those standards will likely be substantially the same as those that presently apply and which all profess to embrace.

9. Moreover, I recommend that the News Media Council have those roles in respect of news and current affairs coverage on all platforms, that is, print, online, radio and television. It will thus explicitly cover online news for the first time, and will involve transferring ACMA functions for standards and complaints concerning news and current affairs. It will replace the voluntary APC with a statutory entity. In an era of media convergence, the mandate of regulatory agencies should be defined by function rather than by medium. Where many publishers transmit the same story on different platforms it is logical that there be one regulatory regime covering them all.

10. The News Media Council should have secure funding from government and its decisions made binding, but beyond that government should have no role. The establishment of a council is not about increasing the power of government or about imposing some form of censorship. It is about making the news media more accountable to those covered in the news, and to the public generally.

11. A guiding principle behind the design of the News Media Council is that it will provide redress in ways that are consistent with the nature of journalism and its democratic role. Like the APC, its members should be comprised of community, industry and professional representatives. It should adopt complaint-handling procedures which are timely, efficient and inexpensive. In the first instance it should seek to resolve a complaint by conciliation and do so within two or three days. If a complaint must go to adjudication it should be resolved within weeks, not months.

12. An important change to the status quo is that, in appropriate cases, the News Media Council should have power to require a news media outlet to publish an apology, correction or retraction, or afford a person a right to reply. This is in line with the ideals contained in existing ethical codes but in practice often difficult to obtain.

13. If these recommendations are adopted, both the public and news media organisations should be confident that the News Media Council will carry out its functions independently and effectively. There will be a single, properly-funded regulator with the power to enforce news standards across all news media outlets.

14. Although I recommend that these steps be taken to make the news media properly accountable, there is another side to the media that ought to be acknowledged. Despite the volume of complaints and criticisms, what also became apparent to me during the course of the Inquiry is the news media’s many achievements, and just how strongly many people, both inside and outside the media, care about the health of news and journalism. Australia’s newspapers employ many dedicated professionals, performing their roles skilfully and diligently. The process of accountability proposed here recognises the realities and difficulties of journalism, emphasising immediate exchange and correction rather than financial or legal punitiveness. Equally it is consistent with the ideals guiding journalism by emphasising transparency and recognising the public interest in how a major institution of our democracy performs.

15. These proposals are made at a time when polls consistently reveal low levels of trust in the media, when there is declining newspaper circulation, and when there are frequent controversies about media performance. Many of the criticisms are self-interested or expedient; much of the public cynicism is misdirected. Yet a news media visibly living up to its own standards and enforcing its own high ideals is likely to increase rather than undermine public confidence and acceptance.
The report goes on to discuss "Changing business models and quality journalism", commenting that -
16. New technology, particularly the internet, has revolutionised access to the news. The result has been a reduction in the circulation of newspapers and a reduction in revenue from classified advertising. The advertising expenditure is now spread across platforms. Main news organisations are recovering only a small proportion of these revenues by moving to online publishing.

17. These changes have been greeted with dramatic rhetoric: Who killed the newspaper? asked The Economist magazine in 2006 . In the United States, the crisis has been felt by the news media much more acutely, and there has been considerable pessimism about the news media being able to continue their traditional democratic roles.

18. It is too early to reach such conclusions in Australia. We are in the midst of changes whose future direction can only dimly be discerned. Moreover there are many positive as well as negative changes with the increasing importance of the internet. Low barriers to entry will facilitate new ventures, and so may lead to more democratic diversity, given the concentrated ownership of Australian newspapers.

19. I have reached the conclusion that at this stage there is not a case for government support.

20. Nevertheless, the situation is changing rapidly, and requires careful and continuous monitoring. Therefore, I recommend that one function of a News Media Council should be to chart trends in the industry, and particularly to see whether there will be a serious decline in the production and delivery of quality journalism.

21. In addition, I recommend that within the next two years or so the Productivity Commission be issued with a reference to conduct an inquiry into the health of the news industry and make recommendations on whether there is a need for government support to sustain that role. It should also consider the policy principles by which any government support should be given to ensure effectiveness, as well as eliminating any chance of political patronage or censorship.

22. Apart from reviewing those issues on a national scale, one area that requires especially careful monitoring is the adequacy of news services in regional areas. There is some evidence that both regional radio and television stations and newspapers have cut back substantially on their news gathering, leaving some communities poorly served for local news. This may require particular support in the immediate future, and I recommend that this issue be investigated by the government as a matter of some urgency.
Much of the report is anodyne and early criticisms that it will usher in a 'big brother state' are misplaced. In discussing 'ethics and intrusions on privacy' the report notes that -
4.56 Community concerns about media intrusions on individual privacy are widespread. A 2004 parallel survey of voters and journalists by Muller found sharp differences in attitudes between the two sets of respondents on a number of specific ethical questions. The biggest differences were on privacy and deception. On privacy, 92% of voters but only 38% of journalists said it was never right to take a picture of someone in their backyard from outside the property without their knowledge and consent. On deception, 85% of voters but only 38% of journalists said it was never right to obtain access by pretending to be someone other than a journalist. The survey also asked whether it was right to pretend to be sympathetic to a person’s situation in order to obtain an interview. In their responses, 68% of journalists said it was right and 28% said it was never right. In sharp contrast, 70% of respondents said it was never right and 29% said it was. Large proportions of respondents to an earlier (1974) survey by Saulwick considered interviewing people against their will to be an invasion of privacy: for celebrities it was 56% and for private citizens it was 76%.

4.57 In May 2010 after the resignation of a New South Wales Government Minister who had been ‘outed’ by a commercial television channel, Essential Media asked people whether it was appropriate to reveal details of a political figure’s private life. A majority (54%) said it was justified in at least some circumstances, specifically where the conduct had an impact on the politician’s work or taxpayers’ resources or where the politician had acted in a way that was clearly at odds with their publicly expressed views. Thirty-eight per cent said such disclosures were never justified.

4.58 In a survey taken in July 2011 by Essential Media in the immediate aftermath of the British phone-hacking scandal involving the now-defunct News of the World, 51% of respondents said they were now more concerned about the conduct of Australian newspapers, but 38% said it had made no difference to their views.

4.59 A recent prominent example of an invasion of privacy involving a public figure was the publication on the front pages of News Limited papers in March 2009 of fake photographs said to be of Pauline Hanson who was at the time a candidate for election to the Queensland parliament. The journalistic failings were well catalogued in a Media Watch episode on 23 March 2009. Essentially, in the rush to print, the journalists at The Sunday Telegraph carried out only very rudimentary verification. An apology was later published. In his evidence to the Inquiry, Mr Littlemore QC, who had represented Ms Hanson, referred to this as a rare case in which it was not necessary to issue a statement of claim for defamation before the dispute between the parties was resolved.

4.60 While there is substantial disapproval of media infringements of individual privacy, complaints to the APC concerning privacy represent only about 10 per cent of total complaints . In his evidence Mr Chadwick, the ABC’s Director of Editorial Policies, calculated that historically privacy complaints to the APC, ABC and the Australian Communications & Media Authority (ACMA) have been around five per cent of total complaints. On that basis he concluded that :
… invasion of privacy is not a serious offence, a constant offence, a major offence, committed by the Australian media.
4.61 In 2008 the ALRC completed a two-year long investigation into privacy. A year earlier as part of its inquiry process, the ALRC released an issues paper which included discussion of the self-regulatory model for the print media, some criticisms of it and proposals for reform before expressing this view :
In the ALRC’s view, freedom of expression is a fundamental tenet of a liberal democracy. Appointing an independent government body to oversee the media is a measure of last resort. Such an approach should be taken only where there is substantial evidence that self-regulation and co-regulation in the media industry have failed. Based on the relatively low rate of privacy-related complaints, investigations and findings of breach, as well as the small number of submissions calling for a change in regulatory model, the ALRC does not consider that the appointment of a government body, such as a Media Complaints Commission, is warranted.
4.62 In its final report, For Your Information, the ALRC noted ‘particular concerns’ relating to the reporting of certain types of personal information by media organisations, including personal information about children and young people, sensitive personal information, including health information and personal information connected to legal proceedings . Then referring to the present self-regulatory model for print media it stated :
The ALRC has ongoing concerns about the capacity of a self-regulatory system to preserve the tenuous balance between the public interest in freedom of expression and the public interest in adequately safeguarding the handling of personal information.
Several submissions to the Inquiry expressed similar concerns. Four warrant particular mention.

4.64 The first is from a group of academic researchers currently engaged on a three-year Australian Research Council (ARC)-funded research project examining ‘Vulnerability and the News Media’. The report on the study is due later this year, but the group agreed to provide its preliminary findings to the Inquiry. The research spans a content analysis of national, metropolitan, regional and suburban newspapers during 2009, an analysis of APC adjudications concerning complaints about how the news media dealt with people during ‘moments of vulnerability’ and six focus group interviews conducted across four states during 2010 and 2011.

4.65 The research identified two main types of vulnerability stemming from a person’s identity or from a person’s circumstances. The first concerned particular groups in society (such as Indigenous Australians, those from diverse ethnic or religious backgrounds, physically or intellectually disabled people or those suffering from a mental illness) who have most often been misrepresented or stereotyped in media coverage. The second comprised people who are in a vulnerable state because of an event in their life, such as the death of a family member, their involvement in a natural or man-made disaster, or their suffering physical or sexual assault.

4.66 In their submission, the research group observed that vulnerable people are typically ignorant of media practices and of complaint procedures . When offered a chance to respond, vulnerable people are not in an appropriate state of mind or emotional position to comprehend the offer or to take advantage of it. As to the apparent under-representation of privacy complaints to the APC, the research group offered this view:
Making a complaint to the Press Council requires knowledge that the complaints mechanism exists and a relatively high level of literacy about the steps involved in that process. Vulnerable sources may well have a desire to complain, but not the energy or competence at the time to do it. This relies on third-party support to make the complaint - which is not always available
4.67 Research by the Centre for Advanced Journalism at the University of Melbourne examined the effect on survivors of being covered by the media, as well as ethical issues arising for the media in covering the 2009 Victorian bushfires. The research revealed many news media practitioners treated the survivors with respect, but there were some serious lapses. These included one instance of a reporter disguised as a volunteer obtaining access to a relief centre and after lights-out attempting to obtain interviews with survivors surreptitiously. It should be added, in fairness, that this was an isolated though egregious case.

4.68 The third submission was from the South Australian Commissioner for Victims’ Rights, Michael O’Connell . He wrote:
Media insensitivity towards victims of crime, especially violent crime, can cause a ‘second injury’. In spite of media assertions that reporting on victims’ plight humanises their coverage of crime, victims’ opinions (influenced by their dealings with the media) can differ. Rather, insensitive (sometimes dehumanising) reporting and coverage often re-victimises victims.

4.69 Mr O’Connell provided the Inquiry with a list of grievances he had received from crime victims’ about the news media. Those grievances included the following.
• Photographs or footage of crime scenes, including dead bodies.
• Interviews at inappropriate times, such as when the victim is in shock and unaware of the consequences of his or her replies.
• Unwillingness to respect victims’ requests, especially filming funeral corteges.
• Approaching people for interviews before they have been informed of the death of a relative.
• Publishing gruesome details, such as the precise nature of injuries sustained by a murder victim.
• Inappropriate or aggressive questioning.
• Intrusion into a victim’s privacy, including, for example, publishing an image of the victim’s home even though the crime took place elsewhere.
• Relying on speculation to challenge a victim’s credibility.
• Blaming the victim for the crime, especially victims of sexual assault.
4.70 The commissioner acknowledged some crime victims have told him they found telling their story to the media to be cathartic and others who praised the work of individual journalists and photographers.

4.71 Fourth, the Australian Privacy Foundation , a national non-profit body advocating on privacy issues, submitted that ‘there are all-too-frequent instances of seriously and unjustifiably privacy-invasive actions by the media’ and cited numerous instances in recent years concerning ordinary citizens as well as high profile people.

4.72 To this might be added two more recent instances.

4.73 On Saturday 19 November 2011, The Sydney Morning Herald led the paper with two reports and a large photograph on its front page about a fire at a nursing home at Quakers Hill, Sydney, that had killed four of the home’s 96 elderly patients the previous day. Another news report and six more photographs were published on page 10. The photograph on the front page showed an elderly man lying in his bed, but the bed was on the street as the residents had been evacuated from the home. His mouth was agape and his eyes closed. At least two readers wrote to complain. Published on 21 November, the first letter asked why the newspaper hadn’t used more photographs of the emergency services personnel rather than ‘the frail, elderly residents who had been pulled to safety and deserved some privacy’. The second letter empathised with relatives reading or watching coverage of the fire on television: ‘News is one thing, compassion another. Surely the two can be mixed more sensitively’.

4.74 On 3 August 2011, New South Wales police were called when a young woman, Madeleine Pulver, reported that an intruder had placed a collar bomb around her neck. The bomb turned out to be a hoax. The following day her father made repeated calls to the media to respect her privacy. Some newspapers had already obtained images from Facebook of Ms Pulver and printed them. Reporters from broadcast television stations then camped outside her house for up to four days. A Sydney newspaper published photos of her walking her dog.
The report goes on to comment that -
... the news media can cause wrongful harm to individuals and organisations by unreliable or inaccurate reporting, breach of privacy, and the failure to properly take into account the defenceless in the community.

11.11 Here are a few striking instances:
• A minister of the Crown has his homosexuality exposed. He is forced to resign.
• A chief commissioner of police is the victim of false accusations about his job performance fed to the news media by a ministerial adviser. Following publication of the articles, he is forced to resign.
• A woman is wrongly implicated in the deaths of her two young children in a house fire. Her grief over her children's death is compounded by the news media coverage.
• Nude photographs said to be of a female politician contesting a seat in a state election are published with no checking of their veracity. The photographs are fakes.
• A teenage girl is victimised because of her having had sexual relations with a well-known sportsman.
11.12 Self-regulation has not been successful in dealing with irresponsible reporting. Certainly codes of ethics have improved the position, but not sufficiently. The failings of APC — lack of awareness of its existence, lack of funding, lack of enforcement powers, lack of reach — are problems that such bodies face in many democracies. ...

That self-regulation and co-regulation have not worked satisfactorily is not the only problem. Even if instances of breaches of standards were few there is still something missing. What is missing is a system that, as Professor Sampford put it in his submission, ‘can be seen as a form of risk management - a kind of ‘institutional insurance’ against the misuse or abuse of power.’ Accordingly, Professor Sampford said, it is not necessary to show abuse to justify the implementation of effective regulation - although the probability of abuse and its seriousness are matters that ought to be taken into account when deciding what to do.