07 April 2012

SSA in Sydney

ACON and Arab Council Australia are about to launch We're Family Too, study of homophobia in the Australian Arab community.

The study results from "a collaborative partnership" between ACON, the Council, the Beit el Hob community group and a Steering Committee of representatives from Arab and gay, lesbian, bisexual, transgender communities. It involved a "largely qualitative methodology" in an online survey of the experiences and opinions of people from Arabic‐speaking backgrounds, complemented by two focus groups with 7 same‐sex attracted (SSA) men and 5 SSA women; a focus group with 11 community and welfare workers, and one‐on‐one interviews with 9 community and religious leaders and 6 family members from three families.

The research will attract interest regarding the analysis and the methodology, with ACON for example noting that
37 valid responses were received to the online survey of SSA people from Arabic‐speaking backgrounds. Of the sample, 26 respondents identified as male and 11 as female, just under 2/3rds were Australian‐born, and 60% identified as Christian and 30% identified as Muslim. The majority of survey respondents were from Lebanese background, under the age of 34 and located in South West and Inner West Sydney.
Not quite an exhaustive study, albeit the small population size might be an indication of attitudes regarding LGBTIQ affinity and probing by sociologists.

ACON indicates that
Almost all participants perceived that hostile attitudes existed towards gays and lesbians in Arab communities. There was a strong division between participants who saw homophobia as the problem and those – mainly some community and religious leaders – who saw homosexuality as the problem.
Participants who saw homophobia as a problem said reasons underlying hostile attitudes included:
o the interconnection between religious and cultural values;
o the centrality of heterosexual relations for life progression;
o patriarchal structures and rigidly defined gender roles; and
o a lack of understand or education about sexuality in general.
These participants said such attitudes persisted because of:
o socio‐economic and cultural marginalisation
o the unchallenged (views of elders being passed down to younger generations – it was disrespectful to challenge the views of elders
o the importance of maintaining personal and familial reputation or ‘honour’ – this made it harder to challenge homophobia or claim an SSA identity because it was perceived as bringing shame on the family; and
o religious values and cultural mores which mutually reinforced each other.
A few community and religious leaders suggested that hostile attitudes towards homosexuality were positive virtues, although none supported actual physical violence being used against SSA people. They variously saw (or said others in Arab communities saw) homosexuality as contrary to cultural and religious values, a Western import, non‐existent or less prevalent in Arab communities, disgusting, contagious, a sickness, curable, a choice, unnatural, immoral, a risk to children and/or leading to AIDS.
No surprises there for readers of works such as Joseph Massad's occidentalist Desiring Arabs (Chicago: University of Chicago Press 2007) - centred on the notion that promotion of LGBTIQ rights is a conspiracy headed by a Homintern of orientalists and colonialists that “produces homosexuals, as well as gays and lesbians, where they do not exist” - and the more persuasive Unspeakable Love: Gay and Lesbian Life in the Middle East (Berkeley: University of California Press 2006) by Brian Whittaker.

ACON goes on to comment that -
Participant responses revealed a complex and nuanced interaction between religious values and homophobic beliefs. In some cases, religious values and beliefs were used to justify homophobic attitudes, whilst in other cases religious values helped analyse or challenge the non‐acceptance of homosexuality, or specific homophobia‐related attitudes and hatred.
Key findings about SSA experience were -
More than a third of the SSA survey respondents reported threats of violence or intimidation and one quarter reported physical violence from people within Arab communities. Seven out of 32 reported being taken to a doctor or religious leader to be cured.
SSA survey respondents were more likely to disclose their sexuality to gay and lesbian friends from Arab‐speaking backgrounds, non‐Arab friends and work colleagues. Fathers and religious leaders were least likely to be told.
Key reasons given for the non‐disclosure of sexuality were fears of a negative reaction, a sense of duty and commitment to family members to not bring shame upon the family (honour), a sense of being unready, or a desire to keep with cultural norms of sexuality as ‘private’. A desire for openness, self‐affirmation and self‐determination were the main reasons given for disclosure.
Supportive family members who knew about their relative’s sexuality spoke of a tension resulting from the need to simultaneously support their SSA relatives and defend them from homophobia, whilst concealing their relatives’ sexuality from other family members, and maintaining family honour. Some family members felt very alone.
Some SSA participants spoke of isolated instances of quiet support from religious leaders. However, 6 of the 9 community and religious leaders interviewed held views ranging from moderate compassion (yet disapproval) to outright hostility towards lesbians and gay men.
Out of 31 responses, 14 SSA survey respondents did not believe that gay, lesbian and queer organisations adequately addressed issues concerning Arab gays and lesbians, and a further 16 said they only ‘partly’ did so.

Greenleaf

Three items from Graham Greenleaf, the GOM of Australian privacy law ... always worth reading, even if you disagree with his emphases or conclusions.

'Major Changes in Asia Pacific Data Privacy Laws: 2011 Survey' by Greenleaf in 113(1) Privacy Laws & Business International Report (2011) 5-14 argues that
Nearly a quarter of a century after data privacy laws (or as the Europeans say, ‘data protection’) first appeared in Asia and the Pacific, 2011 was a watershed year, with dramatic developments in the expansion of data protection laws in Asia. This article surveys data privacy legislation developments across Asia (from Japan to Pakistan, and from Mongolia to Indonesia), plus Australasia and the Pacific. The highlights of these new developments are new data privacy laws in South Korea, Taiwan, Malaysia and India, privacy protections in Vietnam’s new consumer law, and reform proposals in Singapore, Hong Kong, Australia and New Zealand. Legislative action seems to parallel the accelerating scale of threats to privacy, typified by massive data breaches in country after country, but the causal relationship is beyond the scope of this article. The article analyses these development, and the state of play in other countries of the regions, by sub-regions, in order of where the most dramatic recent developments have taken place: South Asia; North Asia; Indo-China; Australasia and the Pacific. The emphasis is on developments over the last 18 months, but background on previous data privacy laws is provided. 
'Privacy Enforcement Strengthens in Australia & New Zealand' by Greenleaf & Katrine Evans in 115 Privacy Laws & Business International Report (2012) is described as
the first of a series surveying recent Asian and Australasian examples of significant enforcement of data privacy laws. If there are current examples of where privacy laws are achieving significant outcomes in a country, this should make us cautious of the oft-voiced suspicion that ‘privacy laws don't achieve anything’. On the other hand, if such examples are lacking, this raises serious questions. The main sources for such examples are court and tribunal decisions, and the databases of complaint summaries, and annual reports, of data protection authorities.
By ‘significant examples of privacy enforcement actions’ what we mean is as follows. Firstly, the action results from complaints to an independent authority, actions before any Court or Tribunal, or 'own motion' actions by an authority responding to a specific situation. General investigations or reform proposals by authorities are not included. Secondly, the authorities concerned could be Data Protection Authorities (DPAs) or Privacy Commissioners but they could also be telecommunications regulators, financial regulators, government agencies and so on. Independent industry self-regulatory bodies could be included. Thirdly, the result is a significant remedy for an individual or a group of people; or a significant change in (or confirmation of) the interpretation of the law with potential remedial benefits; or a significant change in business or government practices.
At present there are well-established data privacy laws covering most aspects of the private sector in nine jurisdictions in Asia and Australasia. This article covers New Zealand and the three Australian jurisdictions. ...
This survey of recent enforcement examples in New Zealand and Australia makes it clear that significant examples of enforcement of privacy laws continue to occur in all four jurisdictions considered, and some examples show the strengthening of particular remedies. However, the mechanisms through which significant enforcement arises differs a great deal between jurisdictions. In these Australasian examples they include complainant-initiated injunctions, both awards of damages and mediations by Privacy Commissioners, orders by quasi-judicial Tribunals, and suppression orders by Tribunals. One overall factor shared by all four Australia and New Zealand jurisdictions is that payments of financial compensation to complainants are possible and do occur. A comprehensive assessment of enforcement effectiveness would also require statistical information to be considered. Such analysis of enforcement of privacy laws and its effectiveness (covering examples, statistics and mechanisms) is an important aspect of privacy research which is not yet fully developed.
We might disagree with the upbeat assessment of the two authors. As with the previously noted article, tabulation needs to be integrated with evaluation if it's to go beyond triumphalist reporting. Compensation payments do occur, but are those payments commensurate with the scale of injury, do they deter future malpractice and are breaches of privacy indeed being consistently punished.

One response might be that the answer to those three questions is clearly No. Greenleaf elsewhere appears to have concerns regarding the efficacy of some mechanisms.

Greenleaf's 'Do Not Dismiss ‘Adequacy’: European Data Privacy Standards are Entrenched' in 114 Privacy Laws & Business International Report (2011) 16‐18 comments that
The ‘adequacy’ mechanism in the EU data protection Directive, and perceptions of it, have been one (but only one) of the means by which the influence of European data privacy standards have been felt outside Europe. The EU’s ‘border control’ approach is to require member states to limit data exports unless ‘adequate protection’ can be demonstrated at the receiving end (EU Directive Articles 25, 26). There are now 81 jurisdictions in the world with data privacy laws, excluding those only covering the public sector (Greenleaf, 2011b), so there are 53 theoretical candidates for adequacy findings. However, the EU has only made adequacy decisions in relation to nine jurisdictions as a whole (Andorra, Argentina, Canada, Switzerland, Faroe Islands, Guernsey, Israel, Isle of Man, and Jersey), some of which are of relatively little economic or political significance.
‘Adequacy’ certainly has its critics, and many criticisms, theoretical and practical, have substance. But this article argues that we should not be too hasty, and outlines a number of reasons why ‘adequacy’ is now so entrenched in legal systems across the world that it will not be easy to remove. The list of countries considered adequate is expanding slowly: Uruguay and New Zealand will soon be added to the list. Despite the slow pace of the EU in making and publicising assessments, the desire to eventually obtain an ‘adequacy’ finding from the EU, or in a more amorphous form, to have one’s law regarded as of the highest international standard (that the EU Directive is considered by many to embody) has been a significant influence on the development of laws outside Europe. Consideration of the 29 African, Latin American, Asian, Australasian, and other jurisdictions with data privacy laws suggests that the EU Directive is the most significant overall influence on the content of data privacy laws outside Europe, and that its influence is gradually strengthening.
As a result, ‘adequacy’ has stopped being a primarily EU concept. Outside Europe, ‘border control’ data export limitations are found in almost all (25/29) data privacy laws in all regions, though their strength varies a great deal, and they are not yet in force in the laws of Malaysia and Hong Kong. Non-EU/EEA European countries also have data export limitations in their law because of the Additional Protocol to Council of Europe Convention 108. So anyone who wishes to criticise the EU for wanting to ‘impose its standards on the rest of the world’ had better level the same accusation at the rest of the world.
There is also, as yet, little indication that the current revisions of the Directive or the Convention will result in Europe abandoning its ‘border control’ approach. The future for European privacy standards, including the ‘border control’ principle of ‘adequacy’ is far more positive than the criticisms they receive might lead us to believe. Attempts to replace the adequacy concept with some notion of ‘accountability’ that abandons ‘border control’, not only goes against the likely direction of reforms of the Directive, but would also involve changing the Council of Europe Convention Additional Protocol, and all non-EU/EEA laws, and almost all data privacy laws outside Europe as well. The inertia that exists against such change occurring is considerable. Like it or loath it, adequacy may be here to stay.

Eugenics

A revisionist account of a key eugenics judgment is provided by Edward Larson in 'Putting Buck v. Bell in Scientific and Historical Context', 39 Pepperdine Law Review (2011) 101-110.

In discussing the 1927 US Supreme Court opinion in Buck v. Bell 274 U.S. 200 (1927) Larson argues that -
at the time that the case was decided, eugenics was on the incline, not the decline. In the 1920s, the American scientific and medical community broadly backed eugenic remedies for various forms of mental illness and retardation. Legislatures, lawyers, and jurists took their cue from this scientific and medical consensus. Absent any question that the statute at issue in Buck v. Bell was validly passed by the Virginia legislature or that due process was provided for the persons subject to its reach, the law should have withstood constitutional challenge.
The tragedy of Buck v. Bell ... was that Carrie Buck never received the due process guaranteed under Virginia’s eugenic sterilization statute and that neither her lawyers nor the courts protected her from a flagrant violation of her basic constitutional and statutory rights. Under the fact that should have been brought out at trial, Carrie Buck would not have been sterilized. More fundamentally, had due process been provided in this and other instances, while eugenics would still have been a scientific and medical mistake, it would not be a legal one. ...
The 1924-1927 case against Carrie Buck being involuntarily sterilized under Virginia’s new eugenics law was not effectively argued. Her lawyers failed her, which is why I cannot defend this particular decision. It was a bad decision but, given what the Justices reasonably knew, under the facts as presented to them by counsel on both sides in the context of the science of the day, I believe that the Court made the right decision even if I cringe at some of the rhetoric in the majority opinion of Oliver Wendell Holmes.
He notes that
To represent Carrie Buck, the state institution seeking her sterilization chose and paid for an attorney who was a former member of the institution’s Board of Trustees, was a friend of the institution’s superintendent, had supported eugenics sterilization, called no witnesses in his client’s defense at the trial-court hearing, and did not introduce any evidence in court against the sterilization statute even though state sterilization statutes had been declared unconstitutional in other states prior to the trial.
He concludes -
we now know that in the rush to test the constitutionality of Virginia’s new eugenic sterilization law, the categorization of Carrie Buck as mentally deficient was never challenged in court and would not have met modern standards. Further, Buck’s daughter Vivian, the alleged third generation of imbecility, was not mentally retarded. Finally, by the time of Buck and increasingly thereafter, geneticists recognized that many common types of mental illness and retardation covered by the Virginia statute were not inherited as unit genetic characters susceptible to simple eugenic remedies and progressively turned their attention more toward such Mendelian conditions as Tay-Sachs disease, muscular dystrophy, and Huntington’s chorea. However, given what the Supreme Court knew about the law and the facts at issue in Buck, Holmes was right to declare that, as a matter of state public health law and in due deference to majoritarian decision-making, “The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.” That principle remains true even if its application to the sterilization of Carrie Buck proved false.
Accordingly, the Supreme Court has never overruled Buck. Skinner v. Oklahoma, the Court’s 1942 ruling against a eugenic sterilization program for three-time felons, did not touch it. At the time, the consensus about the inheritability of certain types of mental illness and retardation did not extend to criminal behavior. Without that consensus, the sterilization of criminals was always more about punishment than public health. Indeed, before Buck, some state supreme courts had voided sterilization statutes targeting criminals and sterilization numbers for criminals were always much lower than the mentally ill and retarded. Further, the odd distinctions made by the statute at issue in Skinner, which exempted “offenses arising out of the violation of the prohibitory laws, revenue acts, embezzlement, or political offenses” from the “felonies involving moral turpitude” covered by the law, made it particularly vulnerable on equal protection grounds. In voiding the statute, the Court noted:
Sterilization of those who have thrice committed grand larceny, with immunity for those who are embezzlers, is a clear, pointed, unmistakable discrimination. Oklahoma makes no attempt to say that he who commits larceny by trespass or trick or fraud has biologically inheritable traits which he who commits embezzlement lacks. . . . We have not the slightest basis for inferring that that line has any significance in eugenics nor that the inheritability of criminal traits follows the neat legal distinctions which the law has marked between those two offenses.
Notably, while the 1936 report of the American Neurological Association, which some historians credit with turning the tide of American scientific opinion against compulsory eugenics, denounced the sterilization of criminals, it endorsed the procedure for certain mental conditions covered by Virginia’s sterilization statute, such as schizophrenia, manic-depression, epilepsy, and so-called mental hereditary retardation. Such a conclusion fully supported the seemingly contradictory holdings in Buck and Skinner.
Accordingly, state mental-health officials from Virginia to California continued sterilizing patients in their facilities for over two decades after Skinner stopped the practice in prisons. For them, as for the Supreme Court in 1927, “Three generations of imbeciles [were] enough.” Their error lay in their science - not in the law - but the result was just as tragic for Carrie Buck and for the over 55,000 Americans sterilized under compulsory eugenic sterilization laws after Buck.
Indeed, Buck illustrates the potential damage done by a single mistake of fact by the Supreme Court. After the Court upheld Virginia’s sterilization law, seven states enacted similar statutes and the number of sterilizations per year increased dramatically. The individual and collective horrors of those efforts will never be fully known or redressed. The blame rests more with inept or corrupt counsel, hell-bent on upholding Virginia’s eugenic sterilization statute in a set-up case involving a patient who should not have been subject to the procedure under the science of the day, than the Court that followed their lead. Under the facts as stated in the decision, in light of then-prevailing scientific opinion, Buck was rightly decided.

05 April 2012

Viscopy

The establishment of Viscopy, the Australian copyright collecting society for the visual arts, was greeted with dismay in some quarters because of scepticism about the financial and operational viability of that organisation in the short to medium term. That wariness has been substantiated through Viscopy's increasingly close relationship with Copyright Agency Ltd (often known as CAL), a not-for-profit nongovernment entity that operates under the Copyright Act 1968 (Cth), primarily through administration of statutory licencing regarding copying of print material.

The Australian Competition and Consumer Commission (ACCC) has announced that it proposes to allow Viscopy and CAL to "enter into a service agreement under which Copyright Agency will manage and administer the day-to-day operations of Viscopy’s business".

The ACCC media release indicates that
“The ACCC considers that the service agreement will result in significant cost savings to artists and licensees, and operational efficiencies for the administration of copyright licensing,” ACCC chairman Rod Sims said. “The ACCC considers that the detriments from this agreement, if any, will be small due to the very limited overlap between the parties, meaning that for the most part they do not and will not compete with one another, regardless of whether this agreement proceeds or not.” 
Viscopy is an expert in the valuation and licensing of high quality reproductions of single artistic works, for example a particular image to be reproduced online, on a postcard, or on an item of clothing. Viscopy’s members are predominantly fine artists, photographers and cartoonists. 
Copyright Agency’s core business is in the administration of statutory licences for copying and communication of print material by educational institutions and government agencies. Copyright Agency represents the interests of Australian authors, journalists, visual artists, surveyors, photographers and newspaper, magazine and book publishers. Copyright Agency and Viscopy are not-for profit copyright collecting societies and membership is voluntary and free. 
The authorisation will provide statutory protection for Viscopy and Copyright Agency to collaboratively discuss and negotiate terms and conditions for the services provided to their members and licensees, including the scope of services provided, fees and commission levels. The ACCC is proposing to authorise the service agreement for five years. 
Authorisation provides statutory protection from court action for conduct that might otherwise raise concerns under the competition provisions of the Competition and Consumer Act 2010. Broadly, the ACCC may grant an authorisation when it is satisfied that the public benefit from the conduct outweighs any public detriment.
The CAL/Viscopy media release in November 2011 was suitably upbeat, replete with the buzzwords that one would normally encounter in a takeover or corporate reconstruction.

That release indicated that -
A planned services agreement between two of Australia’s prominent rights management agencies, Copyright Agency and Viscopy, will see artists receive additional income, cut red tape and administrative fees and make it easier for organisations and businesses to license copyright material. 
The proposed services agreement, under which Copyright Agency will provide membership, licensing and administrative services to Viscopy’s members and licensees, is anticipated to take effect from mid 2012 subject to regulatory approval. Viscopy members will continue to be served by the Viscopy board. 
Viscopy was established specifically to provide rights management services to visual artists. Copyright Agency provides similar services for rightsholders including publishers, writers and artists, and was appointed in 2010 to manage the new artists' resale royalty scheme. 
Viscopy Chair, Jeremy Thorpe, said the agreement is an important development which will deliver significant benefits to artists and simplify the copyright clearance process for artistic works. “This is an exciting and bold initiative which will see the back office operations of both organisations integrated, increasing licensing revenue to visual artists and cutting administrative costs. 
“At the same time Viscopy’s membership of more than 8,000 visual artists in Australia and New Zealand will continue to be served by its own Board ensuring consistent high quality services for visual artists,” Mr Thorpe said. 
Sandy Grant, Copyright Agency chair said with convergence taking place across many industries, organisations like Copyright Agency and Viscopy need to re-think the way they operate. “This is about sharing resources to deliver better results for the creators of works and the users of those works, alike. “In an ever increasingly converging world the services our organisations offer sit more naturally together than apart,” Mr Grant said. The proposed agreement will create a ‘one-stop-shop’ for any organisation wanting licence approval to use domestic or internationally created text and artistic content. 
Other significant benefits of the agreement include:
• cutting administrative fees and overheads on royalties to visual artists under statutory licences 
• pooling Copyright Agency and Viscopy repertoires, increasing blanket licensing coverage and increasing payments for all members 
• new licensing revenue streams for visual artists 
• high-quality information and training to visual artists 
• principal policy advocacy for authors and artists in international and local policymaking
The agreement will be reviewed by both organisations after three years.
We might ask whether there's much benefit for rights holders and users from the ongoing existence of a statutory collecting society that increasingly looks like a facade for its partner CAL.

Europeanisation

'The Influence of European Data Privacy Standards Outside Europe: Implications for Globalisation of Convention 108' by Graham Greenleaf in 2(2) International Data Privacy Law (2012) comments that 
Eighty-nine countries, from almost all regions of the world, have now enacted data privacy laws covering most of their private sectors. Enactment of laws outside Europe is accelerating. In a few years, the majority of the world’s data privacy laws will be found outside Europe. This geo-political change has implications. 
First, by examining the most important differences between the two European privacy standards (the EU Directive and the Council of Europe Convention 108) and the two non-European standards (the OECD Guidelines and APEC Framework), it is possible to identify what can reasonably be characterised as ‘European influences’ on data privacy laws outside Europe. Examination of 33 of the 39 national data privacy laws currently outside Europe shows that ‘European standards’ have had far more influence outside Europe than has been realised. This influence is increasing. 
Second, the Council of Europe data Protection Convention (Convention 108) and its Additional Protocol are examined from the perspective of the possibility and desirability of their becoming a global international agreement on data privacy. It is argued that there are potential considerable advantages to both non-European and European states if Convention 108 (plus the Additional Protocol) were to become a global privacy agreement through accession of non-European states. However, for such globalisation to occur, the Council of Europe will have to settle and publicise appropriate policies on accession that are appropriate, transparent, and do not reduce European data privacy standards. 
Europe has no reason to retreat from its privacy standards developed over forty years. The rest of the world is moving its way, and it should not compromise fundamental standards for the sake of compromise with powerful outliers, particularly the USA and China. Respect for their domestic prerogatives should not be confused with any need to reduce fundamental aspects of global data privacy standards.
 Greenleaf concludes that 'Globalisation of Convention 108 is possible, but not inevitable' -
Since there are already 39 data privacy laws outside Europe, with most of them at least having a superficial (ie on paper) strong resemblance to European privacy laws, there would seem to be fertile ground for a significant number of non-European countries to accede to Convention 108. A few would be ruled out by their failure to cover the public sector (Vietnam, Malaysia and India). Laws on paper should not be enough for accession, but a high degree of ‘family resemblance’ does at least suggest a plausible order for the Council of Europe to assess possible candidates for membership (as it has now asked the Venice Commission to do). It can then encourage suitable candidates to apply where it appears that reality might match the law on paper. Convention 108 looks to be at least as promising a candidate for globalisation as the Cybercrime Convention. 
Despite this theoretical possibility, there is as yet little of substance to suggest that Convention 108 will become a key instrument of global governance of privacy, despite its great potential to do so. However, it has no realistic competitors as a global privacy instrument. Uruguay is the first country to request to be invited to accede, after its accession received a favourable opinion from the Consultative Committee. The CoE is ‘confident that it will only be the first country in a long list’. The Council of Europe was doing too little that's public to explain to the rest of the world that that non-European accession to Convention 108 is possible, let alone desirable or with a reasonably transparent procedural mechanism. An earlier version of this article suggested that its Data Protection Home Page needed to consolidate into one convenient location scattered information on all matters concerning accession. Since then it has created the heading ‘Accession’, but as yet only it only contains the September 2011 Note explaining the process and not (for example) documents on the invitation to Uruguay to accede, so more needs to be done. Five key issues that need to be addressed or confirmed have already been discussed above. Another key factor may be whether members of a regional data privacy agreement such as ECOWAS see Convention 108 accession as a collective means of establishing free flow of personal data between their region and Europe, and other countries. The CoE has a joint project with ECOWAS to help ensure that the data privacy laws of its member countries meet international standards. Globalisation of Convention 108 could become one of the most important developments in data privacy over the next decade, but it is too early to tell. It will not happen unless the Council of Europe takes more effective steps to promote the advantages of accession to the rest of the world, and to make its own policies better development and more transparent concerning the standards that must be met for accession, and the procedures to be followed. 
This article has stressed the potential advantages of non-European accession to both European and non-European states, and to businesses operating within them. From the perspective of Civil Society (the perspective of this author) the key factor determining whether it will support the globalisation of Convention 108 and the Additional Protocol is that European data privacy standards are not compromised in the process, and that new accessions meet those standards. It is worth repeating that arguments in favour of globalisation are only valid on the assumptions that (i) the current ‘modernisation’ process for Convention 108 does not reduce the privacy standards found in the current Convention plus Additional Protocol, particularly in the key area of data exports; (ii) the non-European accession processes also maintain those standards. 
Subject to all these caveats, we should observe that global conventions often take decades to obtain a ‘critical mass’ of ratifications. Convention 108 is well placed to do so by the end of this decade, but there is no inevitability in this result, it will take a lot of determined work. 
As a result 'Europe should stick to its standards' - 
Increasingly, versions of the European privacy standards are becoming part of the laws of most countries in the world outside Europe (as well as all European countries), as the adoption of new data privacy laws accelerates past the current 89. The adoption of European data privacy standards in the legislation of a large and increasing number of countries outside Europe is a reason for Europe to adhere to those standards, additional to their intrinsic merit as a statement of human rights. There are no good reasons for Europe to retreat from the privacy standards it has slowly and relatively consistently developed over forty years. There are no alternative global standards worth considering. There are good reasons for European institutions to do a better job of enforcing their own standards, but not for abandoning them. The significant outliers – principally the USA and China – are few but powerful. They are increasingly living in neighbourhoods of countries that do have data privacy laws. There are some developments within each outlier country sympathetic to effective privacy protection. At least where the operation of US or Chinese businesses involves the personal data of citizens of other countries, European and other countries with data privacy laws should continue to put pressure on US and Chinese businesses and government agencies to comply with what is an increasingly global standard for data privacy. Respect for their domestic prerogatives should not be confused with any need to reduce fundamental aspects of global data privacy standards.

04 April 2012

DNS Disputes

'The Evolution of Precedent in Mandatory Arbitration - Lessons from a Decade of Domain Name Dispute Resolutions' by Andrew Christie & Fiona Rotstein in (2011) 30(1) The Arbitrator & Mediator 65-74 notes that -
In just over a decade, the international system for mandatory arbitration of domain name disputes has disposed of more than 30,000 disputes, between parties from more than 150 countries, in short timeframes and at low cost. Despite the absence of an appellate body and a doctrine of stare decisis, the system has evolved a comprehensive and largely noncontroversial body of precedent, that provides clear guidance to parties on most of the legal and procedural issues involved in a domain name dispute. This paper explores both why and how, exactly, such a sophisticated precedential system has evolved voluntary, and identifies the lessons that may be drawn from this experience for other arbitration systems.
The authors conclude that -
The implementation of the doctrine of precedent in the curial system of dispute resolution requires three features: published past decisions, a rule requiring decision-makers to follow past decisions, and an appellate body to enforce the rule. Neither traditional arbitration nor non-traditional arbitration exhibits all three features. At most, only the first feature is present in arbitration systems. Nevertheless, it is undeniable that some non-traditional arbitration systems have evolved into de facto precedential systems. The UDRP, the mandatory arbitration system for resolving domain name disputes, is a paradigm of this.
What lessons can be drawn from the decade of experience of the UDRP about the relevance of precedent to arbitration generally? It is argued that two key lessons can be identified. The first lesson is that arbitrators, for wholly rational reasons, will desire to obtain the outcomes of a precedential system. That is, arbitrators rationally desire to operate a system that is transparently fair to the parties, that is efficient for them as decision-markers, and that maintains the integrity of the system. Consequently, arbitrators will voluntarily seek to comply with the principle of stare decisis, even when there is no formal requirement to do so let alone a mechanism to enforce such compliance.
The second lesson is that arbitral service providers have a critical role to play in enabling arbitrators to achieve this outcome. While publishing arbitral awards is a necessary condition for a de facto precedential system, it is most likely not a sufficient condition – at least when there is a substantial body of awards to form the corpus of precedents. Once the body of awards becomes unmanageably large such that no individual could realistically expect to read and understand all the awards, it will be necessary for arbitral service providers to produce value-added resources for accessing the jurisprudence of the body of awards. Ultimately, it may be necessary for the service provider to produce an ‘informal’ codification of that jurisprudence.

03 April 2012

Vilification

In Sunol v Collier (No 2) [2012] NSWCA 44 the New South Wales Court of Appeal (Bathurst CJ, Allsop P & Basten JA) has failed to find that s 49ZT of the Anti-Discrimination Act 1977 (NSW) was invalid after it served to prohibit the publication of statements which allegedly vilified homosexual people.

That section of the Act specifies that "Homosexual vilification [is] unlawful" -
(1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group.
(2) Nothing in this section renders unlawful:
(a) a fair report of a public act referred to in subsection (1), or
(b) a communication or the distribution or dissemination of any matter on an occasion that would be subject to a defence of absolute privilege (whether under the Defamation Act 2005 or otherwise) in proceedings for defamation, or
(c) a public act, done reasonably and in good faith, for academic, artistic, religious instruction, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.
John Christopher Sunol, who posted the statements, failed in his contention that s 49ZT infringed the implied freedom of communication about government or political matters.

The Court found that s 49ZT struck the appropriate balance between the legitimate end of preventing vilification and the requirement of freedom to discuss and debate government and political matters, deciding that -
s49ZT of the Anti-Discrimination Act 1977 (NSW) does not exceed the legislative power of the State, as confined by the implied constitutional protection of political discourse, and is not invalid on that ground.
In 2005 Collier (now deceased) took action against Sunol over egregious expressions of hatespeech, with the NSW Administrative Decisions Tribunal finding in his favour in Collier v Sunol [2005] NSWADT 261. The Tribunal was guided by cases such as  Burns v Dye [2002] NSWADT 32, in considering Sunol's claim that particular statements "constituted theological material and was ‘written to’ people who shared his religious beliefs" or that "he was just ‘putting out’ his point of view, which ‘we all have rights to do’".

The current case originated in a November 2009 referral by the Administrative Decisions Tribunal Appeal Panel of four questions of law in relation to s 118 of the Administrative Decisions Tribunal Act 1997 (NSW) -
i) Whether eight communications or public acts identified in [13] of the Tribunal's decision in Collier v Sunol [2008] NSWADT 339 on their own or in combination are capable of invoking or enlivening the protection of or application of the constitutional implication of freedom of communication about government or political matters? 
ii) Whether s. 49ZT of the Anti-Discrimination Act 1977 (NSW) should be read down so as not to infringe or be construed so as to conform with the constitutional implication of freedom of communication about government and political matters?
iii) Whether, in relation to matters before the Appeal Panel pertaining to the constitutional implication of freedom of communication about government or political matters, ss. 91A(6) to (9) and 114 of the Anti-Discrimination Act 1977 (NSW) are unlawful or ultra vires? 
iv) Whether ss. 91A(6) to (9) and 114 of the Anti-Discrimination Act 1977 (NSW) should be read down so as not to infringe the constitutional implication of freedom of communication about government or political matters?"
Sunol was substituted for the Panel as applicant by an amended summons filed on 15 August 2011.