28 April 2012


In National Rugby League Investments Pty Limited v Singtel Optus Pty Ltd [2012] FCAFC 59 the Full Court of the Federal Court of Australia has overturned the decision by Rares J in Singtel Optus Pty Ltd v National Rugby League Investments Pty Ltd (No 2) [2012] FCA 34, concerned with the liability of Australian telco Optus for copyright infringement in relation to the TV Now service.

That service enabled  subscribers (householders and small businesses)  to record free to air television programmes (notably football matches) for viewing - ie play back -  on the subscriber’s compatible Optus mobile device or personal computer at a time chosen by the subscriber. In essence,  the service allowed consumers on a grand scale to engage in the timeshifting permitted under s 111 of  the Copyright Act 1968 (Cth), ie using a domestic video recorder or other device to record a free to air broadcast for later viewing on a noncommercial basis at a more convenient time.  Optus in effect provided subscribers with a recorder 'in the cloud'.

In the decision that was appealed the Australian Football League as part of its national Australian Rules competition had granted to Telstra (the dominant telco and main competitor of Optus) an exclusive licence to communicate to the public, by means of the internet and mobile devices, free to air television broadcasts of its football matches. The League and Telstra have copyright interests in the free-to-air broadcasts of live and filmed AFL and NRL football games recorded for Optus subscribers using the TV Now system.

The FCAFC considered two primary questions -
  • who, for the purposes of the Copyright Act 1968 (Cth) was the maker of the film, sound recording or copy when a film (or copy) and a sound recording (or copy) of a television broadcast of one of the matches were made as part of the TV Now service? Was it Optus or the subscriber (or both of them jointly)?
  • If Optus’ act in making the recording would "otherwise constitute an infringement of the copyright of AFL, NRL or Telstra, can Optus invoke what we would inaccurately, but conveniently, call the “private and domestic use” defence of s 111 of the Act"?
Rares J earlier this year held that the maker was the subscriber. On appeal the Federal Court reached a different conclusion, holding that the maker was Optus or, in the alternative, Optus and the subscriber. The FCAFC stated that
It is unnecessary for present purposes to express a definitive view as between the two. Optus could be said to be the maker in that the service it offered to, and did, supply a subscriber was to make and to make available to that person a recording of the football match he or she selected. Alternatively Optus and the subscriber could be said to be the maker for Copyright Act purposes as they acted in concert for the purpose of making a recording of the particular broadcast which the subscriber required to be made and of which he or she initiated the automated process by which copies were produced. In other words, they were jointly and severally responsible for the act of copying. That is our preferred view.
Rares J did not have to consider the second question, given his conclusion regarding the first question. The FCAFC held that
Optus cannot either as maker alone or as a maker with a subscriber bring itself within the scope of the s 111 exception on its proper construction.
It concluded [at 89] that -
There is nothing in the language, or the provenance, of s 111 to suggest that it was intended to cover commercial copying on behalf of individuals. Moreover, the natural meaning of the section is that the person who makes the copy is the person whose purpose is to use it as prescribed by s 111(1). Optus may well be said to have copied programmes so that otherscan use the recorded programme for the purpose envisaged by s 111. Optus, though, makes no use itself of the copies as it frankly concedes. It merely stores them for 30 days. And its purpose in providing its service – and, hence in making copies of programmes for subscribers – is to derive such market advantage in the digital TV industry as its commercial exploitation can provide. Optus cannot invoke the s 111 exception.
At 58 through 64 it stated that there are several reasons for rejecting the proposition that only the subscriber was the maker for s 101, hence s 111, purposes -
First, the meaning given “make” is, in our view, a contrived one. ... The OED definition with its emphasis on producing a “material thing” is an apt one for the purposes of s 86(a) and s 87(a) and (b) – and hence for s 101(1) and s 111 of the Act. In saying this we do not discountenance the need for there to be a causative agency if a copy of a particular thing is to be made. The issue is not simply how something is made. It is by whom is it made. This, as will be seen, is of some importance when we come to consider whether copies were made by Optus and the subscriber jointly.
Second, the reason for rejecting the proposition that the subscriber alone is the maker relates to how the system itself works. This is better discussed when considering whether Optus itself is the maker. We merely note here that a subscriber’s clicking on a button labelled “record” may trigger a sequence of actions which result in copies of a selected programme being made, but it does not necessarily follow that the subscriber alone makes that copy. 
Third, analogies are not necessarily helpful in this setting because they both divert attention from what the TV Now system has been designed to do and pre-suppose what is the function (albeit automated) it performs in the ongoing Optus-subscriber relationship. To anticipate matters, we consider that the system itself has been designed in a way that makes Optus the “main performer of the act of [copying]” ...
Fourth, there is some division between federal courts in the United States as how properly to differentiate between “direct” and “contributory” liability for copyright infringement where automated technologies are employed to make copies of copyright material ... In distinguishing the two forms of liability – a distinction which is of no concern to this Court in these appeals – the “volitional conduct” concept (and as well, the analogies with photocopier use by third parties and use of VCRs and DVRs) have been deployed. ... Whatever utility the volitional conduct concept has in distinguishing the two forms of infringement (given the need to do so in US jurisprudence), its adoption in this country would, in our view, require a gloss to be put on the word “make” in s 86(a) and s 87(a) and (b) of the Act. The need for so doing is not apparent to us, the more so because we have our own legislative and common law devices for imposing liability on third persons who are implicated or join in the infringing acts of another as, for example, by authorising the doing of such acts: Copyright Act s 101(1) and (1A) or by acting in concert with another to infringe copyright in pursuit of a common design: see eg Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd at [620]-[624]; and see below (iv) Optus and the subscriber jointly?
It equally is not apparent to us why a person who designs and operates a wholly automated copying system ought as of course not be treated as a “maker” of an infringing copy where the system itself is configured designedly so as to respond to a third party command to make that copy: see generally the criticism of Cartoon Networkin Ginsburg, at 15-18.
The FCAFC went on to consider whether the TV Now subscriber can nonetheless be said to have acted jointly with Optus in making the copies.
It is the case that no copies will be made of a programme unless the subscriber selects that programme to be recorded and communicates his or her confirmation of that selection to Optus, albeit by an electronic communication to its MACF servers. In at least this “but for” sense, the actions of the subscriber are causative of a recording later being made. Optus places emphasis on the necessity for that action of the subscriber, as well as the action of Optus, in setting up the system, in causing that recording to be made and, subsequently, causing the recording to be communicated to the subscriber. An Optus employee cannot press the record button. However, once that communication is made, the automated processes described by his Honour come into play – the server enters or creates a schedule ID in respect of the programme selected and the user’s unique identifying number in the user database; the recording controllers poll that database once a minute enquiring whether any users have scheduled the recording of any programme due to be broadcast at the time of polling; when the poll so identifies that the user’s selection is due to be broadcast, the MACF server informs the recording controllers which then cause four recordings to be made on the NAS hard disk – ie the timing of the recording coincides with Optus’ recording controller causing the recording to be made, rather than when the subscriber communicates its selection to Optus. 
Accepting as we do the appropriateness of the OED definition for the purposes of s 86, s 87 and s 101, we consider that Optus’ role in the making of a copy – ie in capturing the broadcast and then in embodying its images and sounds in the hard disk – is so pervasive that, even though entirely automated, it cannot be disregarded when the “person” who does the act of copying is to be identified. The system performs the very functions for which it was created by Optus. Even if one were to require volitional conduct proximate to the copying, Optus’ creating and keeping in constant readiness the TV Now system would satisfy that requirement. It should also be emphasised that the recording is made by reason of Optus’ system remaining “up” and available to implement the subscriber’s request at the time when its recording controllers poll the user database and receive a response indicating that a recording has been requested. What Optus actually does has –
a nexus sufficiently close and causal to the illegal copying that one could conclude that the machine owner ... trespassed on the exclusive domain of the copyright owners: CoStar Group Inc v LoopNet Inc [2004] USCA4 133; 373 F3d 544 at 550 (4th Circ. 2004). ...
Put shortly Optus is not merely making available its system to another who uses it to copy a broadcast: cf CoStar Group Inc at 550. Rather it captures, copies, stores and makes available for reward, a programme for later viewing by another: cf New York Times Co Inc v Tasini [2001] USSC 59 (2001) 533 US 483 at 504; and see Ginsburg at 15-16.
The real issue in consequence is whether Optus alone does the act of copying or whether Optus and the subscriber are jointly and severally responsible for that act.
... The appellants’ preferred characterisation of the Optus-subscriber relationship was that it was one in which Optus undertook to provide recordings of such free-to-air television programmes as the subscriber required to be recorded from time to time, the programmes after recording to be available to be viewed at the time or times of the subscriber’s choosing on any one of four types of Optus compatible mobile phone or PC. It was, in short, a service for which Optus solicited subscribers and in which it was obliged to provide recordings for viewing of programmes the subscriber required to be recorded.
As the recording could only occur as and when the broadcast occurred of the programme sought but that programme itself had to be notified to Optus in advance, Optus established the wholly automated system, described above, which it so configured that the required recording did occur. If that part of the system embodied the steps taken by Optus to ensure that the required programme was recorded at the right time for the subscriber who required it, then the selection and notified confirmation by the subscriber of the programme required to be recorded could be said to be merely the necessary pre-condition to be satisfied to activate Optus’ obligation to perform its service. If this be correct, then Optus can properly be identified as the maker of the copies of the recording. As the AFL has put it, Optus’ data centre carries out the user’s instruction to record a programme; it records that programme. In other words, if analogies are helpful in this particular setting (which we doubt), Optus is to be analogised with a commercial photocopier which copies copyright material provided to it for copying by it.
 ... To view the matter in contractual terms, the terms and conditions of the Service are quite unyielding of any clear indication as to what actually is the true character of the parties relationship. Reference has already been made to the ambiguities, inaccuracies and colloquialism in formulae such as the system “allows you to record and store television shows”. The system is “for your individual and personal use”. Indeed the terms of the contract in this regard are in large measure unarticulated and must be inferred or implied if the agreement is to be given relevant content: cf Hawkins v Clayton (1988) 164 CLR 539 at 570-571. This said, it is more probable than not that a reasonable person, knowing the circumstances available to both parties, would characterise the relationship agreed between the parties (ie would infer or impute to them) that it was a contract by Optus to provide a service such as we have described above. ...
So one comes back to the question of construction raised by the word “make” and its application in the present setting. As we have indicated, Optus not only has solicited subscriber utilisation of its Service, it has also designed and maintained a sophisticated system which can effectuate the making of recordings wanted for viewing by subscribers. For s 101 purposes, it manifestly is involved directly in doing the act of copying. It counts as a maker of copies for the subscriber. Does the subscriber as well? 
If one focussed not only upon the automated service which is held out as able to produce, and which actually produces, the copies but also on the causative agency that is responsible for the copies being made at all, the need for a more complex characterisation is suggested. The subscriber, by selecting the programme to be copied and by confirming that it is to be copied, can properly be said to be the person who instigates the copying. Yet it is Optus which effects it. Without the concerted actions of both there would be no copy made of a football match for the subscriber. Without the subscriber’s involvement, nothing would be created; without Optus’ involvement nothing would be copied. They have needed to act in concert to produce – they each have contributed to – a commonly desired outcome. The subscriber’s contributing acts were envisaged by the contractual terms and conditions. How they were to be done were indicated by the prompts given on the Optus TV Now TV guide page. The common design – the production of the selected programme for transmission to the subscriber – informed the solicitation and the taking of a subscription by the subscriber; it was immanent in the service to be provided.
In consequence, they could both properly be said to be jointly and severally responsible for the act of making the copies.
While it is not strictly necessary for us to determine whether Optus alone is, or Optus and the subscriber are, the maker(s), our preferred view would be that both Optus and the subscriber, acting together, were the makers of the copies.

26 April 2012


Lew & Ors v Priester & Ors (No 2) [2012] VSC 153 involves the Victorian Supreme Court's denial of an application by high profile entrepreneur Solomon Lew for a suppression order in a dispute involving a major family trust.

It's a nice pendant to the cascade of litigation involving Gina Rinehart and her family. All unhappy families are the same, to paraphrase Tolstoy, but the very rich have the means to pay for QCs and - if they choose - to invest in media groups. Both disputes are presumably being watched with great interest by the Australian Taxation Office and both have seen intervention by the mass media, along with commentary by academics (for example by myself in Privacy Law Bulletin).

The cogent judgment states at 1-4 that
The plaintiffs have applied for an order restricting publication of this proceeding to the extent that a prohibition on publication would apply under s 121 of the Family Law Act 1975 (Cth) if this proceeding was conducted in the Family Court of Australia. The stated purpose for which the order is sought is to protect the welfare of the grandchildren of the first and second plaintiffs (“Mr and Mrs Lew”). The plaintiffs allege that there has been a great deal of vindictive and deliberate misreporting of this proceeding by the media which has portrayed Mr Lew as “greedy” and seeking to shut his three children (the third, fourth and fifth defendants) (collectively “the Lew children”) out of the Lew Custodian Trust, when the claim brought by the plaintiffs against the Lew children is not concerned with beneficial interests in the Lew Custodian Trust but with the ownership of monies advanced by way of loan to the Trust. This misreporting is said to be causing harm to the grandchildren. Concern has been expressed by Mr and Mrs Lew and the Lew children that there will be a detrimental emotional effect on the grandchildren if there is further publication of this proceeding.
This proceeding is a claim brought by the plaintiffs for declarations that the Lew children have no beneficial interest in loan accounts in their names to which distributions from the Lew Custodian Trust were credited. The plaintiffs allege that Mr Lew, as the person in effective management and control of the trustee of the Lew Custodian Trust (the third plaintiff), caused distributions to be made from the trust to each of the Lew children in anticipation of legislative changes to the tax treatment of undistributed reserves of trusts. The plaintiffs allege that Mr Lew put a proposal to his children that would ensure that the Lew Custodian Trust distributed its reserves before the change in tax law but in such a way as not to diminish Mr Lew’s control over the assets of the trust. It is alleged that Mr Lew proposed to each of his children that he would cause a distribution to be made to them subject to, and conditional upon, them (1) agreeing that they would have no beneficial interest, or beneficial claim, to any part of the amounts distributed to them, (2) that Mr and Mrs Lew had the sole beneficial interest in the amounts distributed, (3) that the whole of the amount distributed would be dealt with subject to, and in accordance with, the wishes and at the direction of Mr Lew and (4) that unless the children agreed, no distribution would be made to them. It is further alleged that each of the children accepted the proposal.
The plaintiffs seek the declarations in the broader context of concurrent matrimonial property disputes in the Family Court. The beneficial entitlement to the loan account in the name of the fourth defendant is an issue in the Family Court proceeding between her and her former husband, the first defendant. The beneficial entitlement to the loan account in the name of the fifth defendant is an issue in the Family Court proceeding between him and his former wife, the second defendant. The plaintiffs seek to have declared as against all the defendants in this proceeding, who include the former spouses, that the monies are owned by Mr and Mrs Lew. The reporting of the Family Court proceedings is restricted by, and under, s 121 of the Family Law Act.
The plaintiffs want their grandchildren to have the same protections from publication of this proceeding as they do in respect of the Family Court proceedings and put their application on the basis that it is not an application for a closed court but rather it is an application for parity between the confidentiality protection in the Family Court and the proceedings in the Supreme Court. Various media interests have intervened to oppose the order that is sought.
In refusing the application Davies J stated that -
 I am not persuaded that the Court’s power under s 18 of the Supreme Court Act or its power to make non-publication orders in its inherent jurisdiction has been enlivened.
1First, the plaintiffs relied on the rights of the grandchildren to be free from public harassment and the duty of the Court to protect the best interests of the children in order to engage the Court’s power to make a non-publication order. It is undoubted that these considerations, in an appropriate case, may bear on the Court’s exercise of power but the power is only enlivened by the plaintiffs showing that the order is necessary in order to prevent prejudice to the administration of justice or to prevent endangering the physical safety of any person (which are the two possible grounds open to the plaintiffs). To put it another way, the jurisdiction of the Court to make orders restricting publication of any proceeding is not founded in the rights of the grandchildren but in s 18 of the Supreme Court Act and the Court’s inherent jurisdiction. Accordingly, asserting the rights of the grandchildren as the basis for the exercise of power amounts to no more than asserting the conclusion that an order should be made, without demonstrating why the exercise of power is justified by reference to the necessity for that order in the administration of justice.
Secondly, the Court’s jurisdiction to make orders restricting publication of any proceeding is not founded in an equivalent provision to s 121 of the Family Law Act. Section 121 of the Family Law Act secures the purpose of protecting the confidentiality and privacy of the matrimonial proceedings because Parliament has legislated that matrimonial proceedings are to be conducted behind closed doors. Section 121 of the Family Court Act has no counterpart in ss 18 and 19 of the Supreme Court Act or at common law. Sections 18 and 19 of the Supreme Court Act and this Court’s inherent jurisdiction govern the making of non-publication orders in this proceeding. Hence there is a need to engage with the principles that apply in this Court. Reasons of comity or parity of rights may explain why the order is desired but those reasons do not address why the non-publication order is necessary within the terms of s 19 of the Supreme Court Act.
Thirdly, the necessity for an order is not made out by the fact that material which is confidential in the matrimonial proceedings is able to be published in this proceeding pursuant to the order of the Family Court made under s 121(9)(g) of the Family Law Act. The appropriate time for seeking a non-publication order to ensure the continued protection of s 121 of the Family Court Act is when, and to the extent that, such material is sought to be relied on in this proceeding so that the application can be considered in light of the particular material which founds the “necessity” for the order and so that the order, if appropriate, will not go further than is necessary to secure the administration of justice.
Fourthly, an order in the terms sought is not justified even if there has been misreporting of this proceeding (about which I express no view). The order, if made, would have the effect of suppressing all reporting, including preventing, or at least restricting, the publication of fair and accurate reports of this proceeding. There can be no justification for any restriction on fair and accurate reporting of this proceeding, as the concern here is to protect the grandchildren against misreporting. If the proceedings have been misreported, the redress against inaccurate or unfair reporting is not a general order that would prevent or restrict all reporting. As McHugh J said in John Fairfax & Sons Ltd v Police Tribunal of New South Wales: "The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom".
The courts have other powers that can be exercised against the particular journalists/media responsible.
Finally, the application is not supported by probative evidence that further publication of this proceeding will have a detrimental emotional effect on the grandchildren. The concern to that effect expressed by Mr and Mrs Lew and the Lew children is an insufficient basis upon which the Court can reasonably reach the conclusion that it is necessary to make an order restricting publication. Mere belief that the order is necessary is insufficient. It is regrettable that the grandchildren have been subjected to gossip and hurtful comments at school arising from the publication of the proceeding to date which has caused them distress. However, that is not a sufficient reason to make a non-publication order. In Rinehart v Welker Bathurst CJ and McColl JA cited with approval the proposition in R v Legal Aid Board; Ex parte Kaim Todner (a firm) that:
In general ... parties and witnesses have to accept the embarrassment and damage to their reputation and the possible consequential loss which can be inherent in being involved in litigation.

Readin n ritin (and rituals)

In wrapping up teaching for the semester I'm provoking my students with two US items on legal reading and writing. (Fortunately nothing on legal 'rithmetic'.)

'What is ‘Good Legal Writing’ and Why Does it Matter? (University of Michigan Public Law Working Paper No. 252) by Mark Osbeck comments  -
 Law schools face increasing pressure to improve instruction in practice-oriented skills. One of the most important of these skills is legal writing. The existing literature on legal writing contains various rules and suggestions as to how legal writers can improve their writing skills. Yet it lacks an adequate theoretical account of the fundamental nature of good legal writing. As a result, legal writers are left without a conceptual framework to ground the individual rules and suggestions. This article attempts to fill the theoretical void in the literature by offering a systematic analysis of what it is for a legal document to be well-written. It starts by examining a foundational conceptual issue, which is what legal writers mean when they say that a legal document is well-written. It argues that legal readers judge a document to be well-written if the writing helps them make the decisions they need to make in the course of their professional duties. The article then provides an analysis of the fundamental qualities that enable legal writing to do this, concluding that there are three such qualities: clarity, conciseness, and the ability to appropriately engage the reader. The article explains why each of these qualities is essential to good legal writing, and it examines the tools good writers use to make their writing clear, concise, and engaging. Lastly, the article examines what it is that distinguishes the very best writing in the field, arguing that great legal writing is not just writing that is especially clear, concise, and engaging, but is instead writing characterized by a separate quality, elegance, that is aesthetic in nature. The article then goes on to explore what it is that makes such writing elegant, and whether it is desirable for legal writers to strive for elegance in their own writing. The article concludes by briefly considering the pedagogical implications of the analysis discussed in the previous sections.
'The Legal Reader: An Exposé' (University of Tennessee Legal Studies Research Paper No. 183) by Michael Higdon comments that
John Steinbeck once said, “Your audience is one single reader. I have found that sometimes it helps to pick out the person — a real person you know, or an imagined person — and write to that one.” For legal writers, however, this advice is somewhat difficult to follow as their documents are likely to be read by many different kinds of audience members. In this Article, however, I mean to focus specifically on one particular kind of reader: the legally-trained reader or, more simply, the legal reader. After all, the majority of lawyers will find themselves communicating most often with legal readers, whether those readers are other lawyers, judges, or even legislators. 
But who is this legal reader? And, further, what is it about this person that makes her different from an ordinary reader? Various texts on legal writing have alluded to the legal reader and some have even identified some of the key characteristics such a reader is likely to possess. In this Article, however, I want to go further. Specifically, it is my goal to synthesize all the various descriptions that others have used when describing the legal reader into a single manageable definition, one that is based on and identifies the pertinent traits of the average legal reader. I then illustrate the way in which these traits manifest themselves in the expectations of the legal reader — expectations the legal writer must understand if he hopes to communicate with the legal reader most effectively. 
Along the way, I rely heavily on examples from pop culture given that pedagogy scholars have increasingly come to classify pop culture as being “indispensable in education.” In fact, even “[l]egal scholars are starting to recognize the positive impact of using popular-culture references as a mechanism of communication in legal discourse.” Thus, because I hope this article might (at least in part) serve as a teaching tool, I have intentionally included the various pop culture references contained herein to provide us all with some common ground — after all, when it comes to legal education, “students” (whether talking about law students in particular or life-long students of the law in general) are able to “better understand, explore, apply, and synthesize new legal concepts when the concepts are linked or related to their preexisting knowledge and experiences.”


Given my interest in the Canadian class action against purveyors of a homeopathic 'remedy' it is interesting to read 'Can Speech by FDA-Regulated Firms Ever be Noncommercial?" by Nathan Cortez in (2011) 37(2) American Journal of Law and Medicine 388-421.

Cortez considers -
whether speech by pharmaceutical, medical device, and other FDA-regulated companies can ever be noncommercial and thus subject to heightened protection under the First Amendment. Since the U.S. Supreme Court first recognized a right to commercial speech in 1976, there have been 24 published federal judicial opinions in which an FDA-regulated firm has argued that its speech was protected. Courts have categorized the speech as commercial in all but two cases, neither of which involved FDA rules or enforcement. 
I examine the tests and factors courts claim they use when making this threshold distinction, then identify the various factors and indicia of commercial speech that they actually use. I find that courts often use the speaker's commercial identity as a proxy for commercial intent, which otherwise is the most salient factor. The Article then considers various forms of speech by FDA-regulated companies that blur the distinction between commercial and noncommercial speech, including publicity, statements via new media, speech through experts and intermediaries, and scientific speech, including speech about off-label uses for their products. 
The Article concludes that each of the various factors courts use to distinguish commercial from noncommercial speech would have to align perfectly for courts to give it heightened First Amendment protection.
He notes that
For over a century, the Food and Drug Administration (FDA or the Agency) and its precursors have regulated what companies say about their products. The FDA itself notes that the regulatory scheme imposed by the Federal Food, Drug, and Cosmetic Act “depends on the use of words” and that its requirements can “explicitly limit speech.” For seventy years, the FDA had little reason to worry about First Amendment constraints. But since 1976, when the Supreme Court reversed its longstanding position that the First Amendment does not protect commercial speech, the Agency has had to confront —perhaps more than any other federal agency — the free speech rights of regulated firms. 
But how far do those rights extend, and what room do they leave for regulators like the FDA? The answer largely depends on another question: Is the speech commercial or noncommercial? The distinction is paramount. If speech by a regulated firm is commercial, then the FDA can ensure that it is not false or misleading; the Agency can require or compel certain speech; it can impose prior restraints; and it can even limit truthful speech, all within certain parameters.But if the speech is noncommercial, the FDA may not do many — if any — of these things. The distinction thus determines the extent to which the government can regulate, if at all. Unfortunately, after three decades of experience with commercial speech, the doctrinal distinctions between commercial and noncommercial speech remain marbled with points of confusion and contention. The prevailing test from Bolger v. Youngs Drug Products asks whether the speech is an advertisement, whether it refers to a specific product, and whether the speaker has an economic motive, thus considering the form, content, and motivation for the speech. This test capably distinguishes paradigmatic examples of commercial and noncommercial speech. But it is unsatisfactory when categorizing less traditional or even mixed speech, thereby leaving lower courts, regulators, and regulated parties alike with significant uncertainty as to the permissible bounds of regulation. 
A point of lingering uncertainty is under what circumstances speech by corporations might qualify for heightened protection as noncommercial. In 2003, the Supreme Court declined to hear Nike v. Kasky, passing on a chance to provide much-anticipated guidance. Before then, the Court established that direct comments on public issues deserve heightened protection, regardless of who is speaking. But what about other forms of corporate speech? Can speech by regulated firms ever be noncommercial? If so, when? 
These are not minor questions for agencies like the FDA that confront myriad forms of speech that are not easily categorized. Marketers of food, drugs, devices, and dietary supplements often speak in ways that disrupt our conventional understanding of what constitutes advertising or promotion. Not only have these companies pioneered the creative use of press releases, web sites, social media, and other formats, but they also speak through intermediaries and third parties — particularly scientific and medical experts — using speakers bureaus, continuing medical education (CME) seminars, industry and academic conferences, and reprints of scientific studies and academic articles. Are these forms of speech always commercial? What would it take to qualify for heightened protection? 
To better answer these questions, this Article offers a framework that identifies the indicia of commercial speech — the relevant factors courts can use to distinguish commercial from noncommercial speech. Relying on both Supreme Court decisions and a systematic review of cases in which FDA-regulated firms claimed First Amendment protection, I propose a more reductionist, disaggregated approach than the three-part test in Bolger. Bolger considers the form, content and motivation for the speech. I argue that courts should recognize that they are really considering the Who, What, When, Where, Why, and How of the speech at issue: Who is speaking? What is the content of the speech? When is the speech communicated? Where is the speech directed? Why is the speaker speaking? And how is the speech communicated? These questions provide a more complete, detailed picture of the speech. And courts should acknowledge these factors and understand how they operate. 
The Article evaluates how courts have applied these factors and offers a few observations. First, when courts apply the three factors from Bolger, the distinction often boils down to why the speaker is speaking — whether the speech is economically motivated. Despite claims that the Supreme Court is careful not to rest the distinction on commercial intent, which it considers almost “forbidden territory,” most of the factors indeed look for evidence of commercial intent. As emphasized below, commercial intent can become evident by carefully examining who is speaking, about what, when, where, why, and how. Why the speaker is speaking is the most salient factor, but perhaps the most difficult to reliably ascertain. 
Second, courts frequently rely on who is speaking as a proxy for determining the speaker’s motivations, notwithstanding the Supreme Court’s repeated declarations that not all speech by corporations is necessarily commercial. My review found that out of twenty-four cases in which FDA-regulated firms claimed First Amendment protection, courts categorized the speech as commercial in all but two, neither of which involved FDA rules or enforcement. 
The case law suggests that courts have developed more than a healthy dose of skepticism regarding speech by FDA-regulated firms, particularly pharmaceutical and medical device manufacturers. I consider several types of distinction-blurring speech by these firms — including statements made via press releases and other forms of publicity, speech associated with charitable programs, and speech about off-label uses for FDA- approved products—and conclude that each of the factors would have to align perfectly for a skeptical court to categorize the speech as noncommercial. Thus, the answer to the question in the title (Can speech by FDA-regulated firms ever be noncommercial?) is yes, but only if the stars align.

Tonson Inc

'Copyrighting Shakespeare: Jacob Tonson, Eighteenth Century English Copyright, and the Birth of Shakespeare Scholarship' by Jeffrey Gaba in Journal of Intellectual Property Law (2011) considers the Rupert Murdoch of the 1720s and what one of my more unobservant students recurrently referrred to as the "statue of Anne".

Gaba's 49 page article comments that -
 In 1709, Jacob Tonson, the premier publisher of his age, purchased the “copyright” to Shakespeare. Tonson and his family over the next fifty years went on to publish some of the most significant editions of the collected works of Shakespeare, edited by the likes of Nicholas Rowe, Alexander Pope and Samuel Johnson. In many ways, the Tonsons were responsible for the growth of Shakespeare’s popularity and the critical study of his work.
This article discusses the significance of copyright to the Tonsons’ publication decisions. It suggests that the Tonson copyright did not significantly “encourage” their contributions to Shakespeare scholarship. First, Jacob Tonson could not have relied on statutory copyright for protection of his seminal 1709 Rowe edition. Tonson, quite simply, did hold the copyrights at that point, and the Statute of Anne had not yet been introduced, let alone passed, by Parliament. Second, the Tonsons’ publication of later editions would not, as some have asserted, have perpetuated any common law or statutory copyright claim Tonson might have to the works of Shakespeare. Third, although the textual notes and comments contributed by his editors may have been copyrighted, most of the significant editorial contributions to Shakespeare scholarship would not themselves have been subject to copyright protection. Selection of plays in the legitimate Shakespeare canon, for example, and selection of the appropriate text from earlier quarto and Folio editions would not have been subject to copyright protection. Fourth, the expansion of public access to cheaper, more widely available editions of the Shakespeare plays arose in spite of, rather than because of, copyright protections. It was a challenge by a book “pirate” that caused the Tonsons, not to seek legal protection through their claimed copyright, but to flood the market with their own cheap editions of the plays. 
Finally, the article suggests a reason why the Tonsons, whose name appears as plaintiff in many of the early copyright cases, never sought to litigate their claim to a copyright in Shakespeare. Simply put, litigating a claim to copyright in Shakespeare would have been a poor “test case” to secure what the Bookseller’s sought at that time – a perpetual common law copyright based on the natural rights of authors. 
This article suggests that copyright issues, although certainly important, were ancillary to the Tonsons’ publication decisions. Market forces, the protections from competition afforded by a Bookseller cartel, and a respect for Shakespeare’s works, more than copyright protections, appeared to drive the Tonsons’ actions and therefore the growth of Shakespeare scholarship.
'Room for One More': The Metaphorics of Physical Space in the Eighteenth-Century Copyright Debate' by Simon Stern in 24 Law and Literature (2012) takes a more theoretical turn, focussing on
literary texts and writings by copyright polemicists – those arguing for and against stronger copyright protection during the eighteenth century. The metaphor of the text as a tract of land has been cited by other commentators on copyright history, but has not been examined closely. Working through a series of writings on imitation and derivative use, the article shows how the metaphor seemed initially to provide an ideal basis for demanding stronger copyright protection and for policing piracy and derivative uses more aggressively, but turned out, in some writers’ hands, to offer yet another means of portraying the literary marketplace as endlessly expansive. Henry Fielding, in his literary journalism, insisted that there was always “room for one more” even in a crowded marketplace, and he invoked a series of legal doctrines to defend the practice of intercommoning and even poaching on a “neighbour” writer’s land. Far from dictating a particular view of the law, the metaphors of copyright are always capable of being revised and reinterpreted to support the writer’s own perspective.

25 April 2012

Contempt and circumlocution

The Queensland Attorney-General and Minister for Justice has announced that lying to the state Parliament will be a criminal offence (under the Qld Criminal Code) rather than contempt of parliament.

Yesterday's media release states that -
 The drafting of laws making it illegal to lie to the Queensland Parliament will commence with Cabinet to endorse the Government’s election commitment of re-introducing this as a criminal offence.
Attorney-General and Minister for Justice Jarrod Bleijie MP said the State Government would amend the Queensland Criminal Code to re-enact laws repealed under the previous administration. ...
“Knowingly giving false evidence before the Parliament or one of its committees is conduct cutting to the heart of parliamentary privilege and is deserving of criminal sanction.”
Mr Bleijie said that in 2006 the previous State Government had repealed the section that made lying in Parliament a criminal offence after the Parliament had dealt with allegations that the then Minister for Health, Gordon Nuttall MP, had misled a Parliamentary Estimates Committee.
“At that time, the matter constituted not only a contempt of Parliament but under section 57 of the Criminal Code, knowingly giving false evidence before Parliament was a crime with a penalty of up to seven years’ jail,” he said.
“The Parliament resolved to deal with the matter as contempt of Parliament, rather than a criminal offence, and accepted Mr Nuttall’s resignation as a Minister and member of the Executive Council and his apology to Parliament as an appropriate penalty. 
“The previous government then passed amendments to the Criminal Code to repeal section 57, giving Parliament exclusive jurisdiction to deal with a person who provides false evidence to it or one of its committees.”
Mr Bleijie said reintroducing the relevant section of the Criminal Code would enhance the Parliament’s reputation. 
“Allowing the courts to deal with such conduct guards against any suspicions of political interference and cronyism,” he said.
Describing the changes in 2006, then Qld Premier Peter Beattie commented that "It is about time that we got rid of some of these anachronistic provisions that have been around since Adam and Eve were in shorts."

Adam Tomkins in 'A right to mislead Parliament?' in 16(1) Legal Studies (1996) 63-83 took a more dour view, commenting -
The assertion was recently made in the House of Commons that ministers have the right, in certain circumstances, to mislead Parliament, either by telling an outright lie, or by keeping quiet.' This astonishing statement concerns a central aspect of the British constitution: namely the essential ability of Parliament to acquire accurate information about government, even (or perhaps especially) when the government does not want to give it. Despite popular cynicism as to the ability of politicians ever to tell the truth, not lying to Parliament has long been regarded as being of the utmost importance. The very survival of politicians in office has often been made dependent on whether it can be shown that they have misled Parliament: 'John Profumo lost office not because of his sexual misbehaviour but because he lied to Parliament. When Mrs Thatcher narrowly survived the Westland affair the debate was on whether Parliament had been deceived'. The ability to ensure the effective acquisition of relevant information is essential to Parliament's key tasks of engaging in meaningful and effective debate, and of scrutinising the work of the executive:  "securing information is at the heart of the debating or scrutiny process. Ill-informed debate cannot be effective … the price of democracy is eternal scrutiny [and] the success of a democracy is to be judged by the extent to which it can ensure that government is publicly accountable".
Tomkins went on to quote the Treasury & Civil Service Committee comment that -
the knowledge that ministers and civil servants may evade questions and put the best gloss on the facts but will not lie or knowingly mislead the House of Commons is one of the most powerful tools MPs have in holding the executive to account. Not only is the requirement laid down clearly in government guidance to ministers, it is a requirement which the House of Commons itself expects from all its members, departure from which standard can be treated as a contempt ... We accept that the line beween non-disclosure and a misleading answer is often a fine one, not least because the avoidance of misleading answers requires not only strict accuracy but also an awareness of the interpretations which could reasonably be placed upon an answer by others, but ministers should be strengthened in their determination to remain the right side of that line by certainty of the consequences of not doing so. Any minister who has been found to have knowingly misled Parliament should resign'.


In Fleming v Advertiser-News Weekend Publishing Co Pty Ltd & Advertiser Newspapers Pty Ltd [2012] SASC 58 Anglican cleric John Fleming has been unsuccessful in his attempt to strike out justification and contextual truth pleas argued by the publisher in relation to defamation proceedings.

In proceedings before the SA Supreme Court  Fleming has alleged that the publications conveyed imputations that he had engaged in unlawful sexual intercourse with two females and one male in 1970s.


In State of Western Australia v Mack [2011] WASC 127 the WA Supreme Court has found an autistic man, accused of murdering his mother, is fit to stand trial (albeit before a judge without a jury and with the defendant being allowed to attend trial by a video link). The Court found that the man's demeanour and detachment from his trial process was deliberate rather than a result of his autism.

In WA s 9 of the  Criminal Law (Mentally Impaired Accused) Act 1996 (WA) defines 'Mental unfitness to stand trial'  as -
An accused is not mentally fit to stand trial for an offence if the accused, because of mental impairment, is -

(a) unable to understand the nature of the charge;

(b) unable to understand the requirement to plead to the charge or the effect of a plea;

(c) unable to understand the purpose of a trial;

(d) unable to understand or exercise the right to challenge jurors;

(e) unable to follow the course of the trial;

(f) unable to understand the substantial effect of evidence presented by the prosecution in the trial; or

(g) unable to properly defend the charge.
After considering 9(e) and 9(g) in particular McKechnie J found at 41-42 that Mack can stand trial.
My observation of the accused certainly confirms that his behaviour is unusual. I am satisfied that the accused has a mental impairment due to autism. The question is whether his detachment from his trial process manifested by apparent nonresponsiveness is primarily due to his autism.
There is no doubt that a trial judge will have to be responsive to the problems that the accused's autism raise in relation to the conduct of the trial to ensure that the trial is fair and that the accused is given adequate opportunity to instruct his counsel and make a proper defence. ... I am not persuaded that the marked difference between the accused's presentation in the VROI's and his appearance in court is the result of a deterioration due to lifelong autism. Also, notwithstanding Dr Hall's explanation about the telephone call made by the accused a relatively short time before his interview, an equally plausible explanation is that the accused has decided not to engage in the trial process. The telephone call showed a good grasp of the issue he was talking about. It is likely that the accused's current presentation is more as a result of choice coupled with his autism than a result simply of his mental impairment. Applying the legal principles I have outlined to the evidence I prefer, I find that, provided the trial process accommodates the accused's autism, he is fit and able to stand trial. I am not persuaded that the accused's autism is such a contributor to his presentation that he is unfit for trial.
In finding for trial by judge alone he stated at 43-44 that
The State did not oppose the application for trial by judge alone. That is never determinative of the issue, it being a matter for a judge in the interests of justice. However, the position of the prosecution is naturally a matter of significance and weight. The principles governing an application for trial by judge alone have been recently restated in The State of Western Australia v Rayney [2011] WASC 326. The present circumstances are somewhat different from those that have arisen in other cases. In this case the accused's autism, while falling short of an impairment rendering him unfit for trial, will necessarily make a trial more protracted and may require a greater number of adjournments than normal. If the accused participates in the trial via video link from prison this will lead to frequent adjournments, possibly lengthy, while instructions are taken. Such adjournments are unfair burden on a jury both in the time that will have to be set aside for the trial and the fragmentary nature in which the evidence may have to be presented.
The accused also raises the possibility that the accused's unusual personal characteristics may cause him some prejudice in that the jury are distracted by his behaviour or draw adverse inferences against him as a result of such behaviour. I put little weight on this submission as I consider that a jury, properly instructed, would be able to put aside such matters and concentrate on the evidence in the case. However, I conclude that because of the accused's autism and its impact on the trial process generally, the interests of justice require a trial by judge alone.
An affidavit by Mack's representative had stated -
I first met the accused at Hakea Prison on 31 October 2011. It was immediately apparent that the accused had a number of unusual personal characteristics, including:
  • The absence of eye contact, in that his head remained bowed throughout the interview. 
  • The robotic manner in which he spoke.
  • The shortness of his sentences and the absence of any fluent conversation with me.
  • The inability to develop any form of rapport throughout the interview.
At a subsequent meeting at Hakea Prison on 2 February 2012, the accused advised that he would not participate in the trial in any way if he had to attend court in person. He stated that he would only participate in the trial if he was able to appear by video-link from Hakea Prison.
Apart from consideration of psychiatric evidence (by Febbo and Hall) McKechnie J noted -
I ordered that the accused should attend the hearing so that I could see him. The accused entered court 6 in company of security officers. He entered the court without eye contact and after being directed, hurried into the dock and sat down. He stood when asked but made no response to an enquiry about his name. He then sat and for the remainder of the hearing averting all eye contact, keeping his head down, staring at the corner of the dock. He was occasionally twitching or shaking. 
The accused was interviewed by police on 26 August 2010, 2 September 2010 and 10 September 2010. 
In the first two interviews the accused made eye contact with the interviewer. His answers are coherent and appropriate in that he is able to freely convey by his answer that which he wishes to convey. His mood is congruent with his situation. In the final interview on 10 September 2010, his eye contact with interviewers is less although still observable but he spends more time looking to his right at the edge of the table. That said, however, his answers remained logical and coherent. At one point he makes a light and joking remark about an officer's tie. 
On 19 October 2011, the accused telephoned his brother, Adrian, and spoke generally about the case. The accused's tone was appropriate, his thoughts and ideas coherent. He displayed a good grasp of the issues about which he was speaking which related to possible courses of action relative to his litigation. While on occasion there was a slight stammer, the overall impression did not give rise to any indication of an unfitness to plead.


Another 'fake death' insurance fraud for my collection, this time involving media reports that UK geek Hugo Sanchez has been convicted in the Oxford Crown Court after faking his own death and starting a new life in Australia, assisted by $2m insurance payouts.

Sanchez was a web developer with HMV. He is reported to have faked his death - this time a fatal heart attack in Ecuador, rather than the more usual drowning used by scammers such as John Stonehouse MP and canoeist John Darwin - with the assistance of his grieving widow Sophie (currently on parole after two years in custody for fraudulently claiming £115,000 of the money from HMV, life insurers and credit card companies in 2005 and 2006). Sanchez' body was supposedly cremated. He ended up with his children in Sydney, operating a tattoo parlour operator (firebombed twice, supposedly by bikies), before being extradited to the UK in March this year.

His fingerprints had inconveniently been found on his death certificate, he'd posthumously used his HMV discount card and members of his extended family had apparently questioned whether he was dead. The relocation of his children, and the fact that the family was in debt before he holidayed in Ecuador, may have alerted the insurance companies.

The London Daily Mail last year emoted that
Sanchez, 47, whose fingerprints were found on his own death certificate, had been surviving on takeaway chicken and chips under the alias of Hugo Sanchez. ...
When challenged about the alleged fraud, Sanchez said he was aware of reports in the UK claiming that he and his wife had defrauded an insurance company, but he issued a denial. ...
"I know, I know (about the article)", he said, adding "not true". He insisted his wife was not serving a jail sentence but was in England "visiting family" and would be back in Australia next year.
"Sophie is not in jail, she is with family, that’s all", he declared. Ecuador-born Sanchez shrugged when asked how he could have the same surname as the wanted man, look the same, share the same date of birth and have a wife with the same name, yet deny he was the fugitive.
"Excuse me, I am innocent until proven guilty", he said. "I have not done anything. If they want me, they can come and get me."
Apparently they did.

The Guardian eschewed the "takeaway chicken and chips" and OMG, reporting that -
The record company paid for [Sophie] to travel to South America from the couple's home in Farnham, Surrey, so she could attend his funeral. 
She provided a death and cremation certificate and received a death benefit payment of £112,000. She also began claiming on life insurance policies he had taken out and received a large sum of money as part of his pension package before fleeing the country. 
In April 2005, she returned to the UK in order to appoint a solicitor to obtain probate on the estate. She provided the firm with the death certificates and went on to complete claim forms in respect of the other insurance policies, some of which settled that year. 
But an insurance investigator appointed by the larger companies later established that friends and relatives believed Sanchez to be alive and well and living in Costa Rica. The remaining claims were refused. 
HMV wrote to the Sanchez family requesting return of their monies but did not receive a response and reported the matter to police in 2007.
Conviction of Sanchez is a reminder that Australian and UK courts have not embraced parapsychology, contrary to the enthusiasm of exponents of what has been dubbed 'quantum holism'. Don't blame the ghost or a visitor from another dimension if the deceased person's paw marks appear on the death certificate or the dead man and kids are seen tucking into takeaway chicken.


'The Genealogy Detectives: A Constitutional Analysis of 'Familial Searching' by David Kaye in 51(1) American Criminal Law Review (2013) argues that
 “Familial searching” in law enforcement DNA databases has been pilloried as a step “towards eugenics and corruption of blood” and “lifelong genetic surveillance” that is “inconsistent with a basic pillar of American political thought.” Courts have yet to address the issue fully, but several commentators contend that the practice is unwise, unjust, or unconstitutional. This Article examines the more significant constitutional claims. It concludes that although kinship matching should not be implemented simply because it is technologically seductive, neither should it be removed from the realm of permissible law enforcement information gathering on constitutional grounds. In reaching this conclusion, the Article describes the logic of kinship analysis; clarifies the nature of partial-match searching; shows how an advanced system of DNA databases could yield additional, accurate leads in the investigation of both routine and high profile crimes; and why this system, if properly implemented, is compatible with constitutionally protected interests of both convicted offenders and their close relatives.
Kaye comments that
DNA databases are a darling of the detective’s nursery. They began as a curiosity thought to be useful for solving only a few types of violent crimes. Today, they are a dazzling device for enforcing criminal laws from car theft to murder. Computerized matching of the DNA identification profiles from crime-scenes and victims to profiles from known individuals has produced hundreds of thousands of “cold hits.” 
But some people are never satisfied. A number of scientists have concluded that the databases could produce many useful investigative leads if a technique known as kinship analysis were routinely employed. To take their idea to its logical extreme, we can envision a database system constructed to be especially useful for this kind of analysis. Like today’s databases, this system would pick out any individuals in the database who are likely sources of crime-scene DNA samples. But the trawling would not stop here. Almost magically, it could lead to identifications of individuals outside the database who left their DNA at crime scenes or on their victims. 
Unfortunately, there is a catch. These new leads would point only to very close relatives who are not themselves subject to inclusion in the federal and state databases because they have not been convicted of crimes. Kinship matching therefore has been pilloried as “function creep,” “mission creep,” “a major privacy intrusion in the life of families,” “the worst kind of privacy intrusion,” “genetic surveillance for all,” and “lifelong genetic surveillance” that is “inconsistent with a basic pillar of American political thought.” And, as if all that were not enough, it has been tarred as “genetic determinism” and a step “towards eugenics and corruption of blood.” 
Although early commentators perceived no fundamental legal barriers to kinship matching and most writing continues to focus on policy arguments, some recent commentary displays more sympathy or support for constitutional objections. The most prominent example is an essay by Professor Erin Murphy entitled Relative Doubt: Familial Searches of DNA Databases, which contends that the technique is a counterproductive police practice, unfair and unjust, and of doubtful constitutionality. 
This Article provides a more complete examination of the two most significant constitutional issues—the Fourteenth Amendment’s guarantee of equal protection of the laws and the Fourth Amendment’s protection against unreasonable searches and seizures. 
These constitutional provisions, I maintain, are not show-stoppers. Kinship matching should not be implemented simply because it is technologically seductive, but neither should be it be taken off the legislative table on constitutional grounds. To reach this conclusion, Part I describes the logic of kinship analysis and how it can be applied to state- of-the-art forms of DNA databases that could yield accurate leads in the investigation of both routine and high profile crimes. It introduces a few standard terms from genetics, presents more neutral terminology than the slightly ominous phrase, “familial searching,” and explains how kinship matching differs from the partial matching that the FBI allows in the national database (NDIS) that is part of the Combined Offender DNA Index System (CODIS). It also discusses the difficulty of measuring the efficacy of “familial searching.” 
Parts II through IV analyze the two main constitutional objections to kinship matching. Part II argues that the practice is clearly compatible with the established understanding of the Equal Protection Clause. Parts III and IV analyze the interests of all convicted offenders and their families to show why kinship matching in law enforcement databases can qualify as a reasonable search or seizure under the Fourth Amendment. Like every other investigative technique, it can adversely affect very close relatives, but the actual Fourth Amendment interests of both the individuals in the database and their close relatives in keeping the state from finding investigative leads from crime-scene DNA are quite weak. The government interest in efficiently investigating crimes with a thorough and properly implemented system of kinship matching therefore outweighs these interests.

24 April 2012

Facebook Photos

The Sydney Sun-Herald - the Sunday face of the SMH - has breathlessly announced that "People can now be held accountable for their actions on social media" before reporting that
 A jilted boyfriend who put nude pictures of his former lover on Facebook has been sentenced to six months' jail - the first social networking-related conviction in Australian history and one of just a handful in the world. 
 Ravshan ''Ronnie'' Usmanov told police: ''I put the photos up because she hurt me and it was the only thing [I had] to hurt her.'' 
Shortly after posting the pictures on his Facebook page in October last year, Usmanov emailed his girlfriend with the message: ''Some of your photos are now on Facebook''. She had ended their relationship and moved out of their shared home less than three months earlier.  
The woman, who The Sun-Herald has chosen not to identify, ran to Usmanov's flat at Pyrmont, demanding he take down the pictures. When he refused, she called the police. 
Usmanov apparently wasn't convicted under a NSW or Commonwealth privacy statute or for breach of confidentiality, and as noted in posts over the past three years there's no protection through a tort of serious invasion of privacy). Instead his behaviour was reportedly addressed in terms of an offensive publication.

The report states that -
 Sentencing the 20-year-old, the Deputy-Chief Magistrate, Jane Mottley, said she was ''deterring both the offender and the community generally from committing similar crimes''.  
She said: ''New-age technology through Facebook gives instant access to the world. Facebook as a social networking site has limited boundaries. Incalculable damage can be done to a person's reputation by the irresponsible posting of information through that medium. With its popularity and potential for real harm, there is a genuine need to ensure the use of this medium to commit offences of this type is deterred. 
''The harm to the victim is not difficult to contemplate: embarrassment, humiliation and anxiety at not only the viewing of the images by persons who are known to her but also the prospect of viewing by those who are not. It can only be a matter for speculation as to who else may have seen the images, and whether those images have been stored in such a manner which, at a time the complainant least expects, they will again be available for viewing, circulation or distribution.'' 
The court could cite just one other relevant case in which a 20-year-old New Zealand man was sentenced to four months' jail in Wellington in 2010 for posting nude pictures of his ex-girlfriend on Facebook.
Usmanov reportedly pleaded guilty to publishing an indecent article. He appealed the six-month sentence (to be served as home detention).  Blanch J of the District Court confirmed the original sentence, quashing the home detention order in favour of a suspended sentence.

The S-H comments that
 Court papers from the original sentencing reveal discussion over the gravity of Usmanov's offence. His lawyer, Maggie Sten, argued his was not a ''serious offence''. Ms Mottley fired back: ''What could be more serious than publishing nude photographs of a woman on the internet, what could be more serious?'' She added: ''It's one thing to publish an article in print form with limited circulation. That may affect the objective seriousness of the offence but once it goes on the worldwide web via Facebook it effectively means it's open to anyone who has some link in any way, however remotely.''
In discussing the case with students I've commented that a privacy tort is not the only potential remedy. If Usmanov, for example, had repeated the offensive behaviour with intent to humiliate or frighten his former partner he would have been subject to stalking provisions in NSW law.

Amid debate about media self-regulation it is interesting to note the S-H editorial, grandly headed "Privacy Is Sacred" and articulating standards that alas the major media groups apparently do not appear to consider apply to their own operations -
In this world of sophisticated technology, the preservation of personal privacy is under siege. 
Modern technology facilitates intrusion into that privacy like never before. Acquiring information about a person has never been easier. 
Conversely, it's never been simpler to expose one's details to the world voluntarily via such social media sites as Facebook, Twitter and MySpace. And many people do, often indiscreetly and to their lingering detriment and regret. 
But no matter how straightforward it is to disseminate information widely and rapidly, a person's privacy remains sacrosanct. Now, as revealed by The Sun-Herald today, a young man has viciously employed technology to betray his former lover and violate her privacy. Ravshan Usmanov, who posted on Facebook a picture of the woman in the nude, has been convicted of publishing an indecent article. On appeal his original six-month jail sentence has been commuted to a suspended sentence. 
Presumably chastened, Usmanov has now secured his Facebook site with the maximum privacy setting. 
Usmanov is the first person in Australia to be convicted of such felonious use of social networking but he surely is not the first offender. In one of the more notorious examples, a photograph of model Lara Bingle in the shower, taken and allegedly distributed by her then lover, AFL player Brendan Fevola, ended up being published in a women's magazine. Bingle, understandably, felt violated but her refusal to co-operate with an investigation meant Fevola escaped prosecution. 
Recordings of intimate moments between consenting people is strictly their business. That one of the parties, as in the Usmanov case, could appropriate the material and share it with others without express permission from the former partner is a monstrous violation. 
Hopefully the case will be a salutary lesson for all social media users. They need to be very careful about what they allow to be filmed and recorded and with whom.

NZ Privacy

The New Zealand Government has formally responded to the NZ Law Commission's Review of the Privacy Act 1993 report.

The Review of the 1993 Act involved four stages, each with discrete publications -
Stage 1: ... a high-level analysis (completed in 2008 with publication of a study paper) to assess privacy values, changes in technology, international trends, and their implications for NZ law. 
Stage 2: ... a consideration of the law relating to Public Registers and whether it requires systematic alteration as a result of privacy considerations and emerging technology. The Commission recommended a review of all public registers against a template set out in its 2008 report, with the resulting legislative changes to be introduced by way of a single omnibus Bill. 
Stage 3: ... a consideration of the adequacy of New Zealand's civil and criminal law to deal with invasions of privacy. The Commission's final report recommended a new Surveillance Devices Act to fill gaps in "the regulation of the most objectionable forms of surveillance". In contrast to reports by three Australian law reform commissions the report recommended that "development of the common law privacy tort (publication of private facts)" be left to the courts to develop over time, ie NZ should not establish a statutory cause of action. 
Stage 4:  ... a general review of the Privacy Act 1993.
The response concurs with the Law Commission's assessment that the Privacy Act needs to be replaced with a new statute that addresses community expectations about the protection of personal information, new technology and new business practices.

The response is in the traditional format, with the Government noting progress, accepting particular recommendations and quibbling or rejecting others. The response notes that the Government
  • has already made progress on 33 recommendations (including the introduction of the Privacy (Information Sharing) Bill
  • agrees to do further work on 39 recommendations
  • needs to do further work on 55 recommendations before coming to a view
  • will consider 17 recommendations later as part of other work
  • will not consider doing further work on two recommendations.
The Law Commission made ten recommendations about the NZ information matching framework, with the Government responding that seven are best considered after the Privacy (Information Sharing) Bill has been passed and has had time to ‘bed in' -
  • removing the requirement to seek authorisation for online transfers
  • removing the blanket exemption for Inland Revenue to information destruction rules
  • increasing the notice of adverse action period to 10 days, but allowing the Privacy Commissioner to reduce the period in appropriate cases. Two of the 10 recommendations were considered sensible but needed further analysis. They are:
  • making the requirement for the Commissioner to perform a five yearly review of operating programmes a discretionary decision
  • allowing the Commissioner to report separately on information matching activity rather than in the Commissioner's annual report.
The Government noted that the final recommendation (ie all information matching should operate under the information matching framework) is no longer relevant as the Government responded positively to an alternative recommendation with the introduction of the Privacy (Information Sharing) Bill. Pending introduction of that law the information matching framework will remain in effect.

The report suggests that "a high degree of uptake on information sharing agreements may make the information matching provisions redundant", requiring consideration of work to amend or repeal the information matching provisions.

The report proposed introduction of mandatory data breach notification. It cautioned against an absolute breach notification requirement (ie irrespective of the severity of the breach), instead recommending that notification be required only in certain circumstances. It suggested two criteria -
  • where the breach is serious, with seriousness assessed in relation to matters such as the scale of the breach, the information's importance or sensitivity,  or the reasonable foreseeability that significant harm might result
  • where notification may allow the individual to mitigate a significant risk of real harm to the individual.
The report called for 'Better protection against offensive online publication', commenting that
The internet has been enormously empowering, but its power can also be abused through the offensive or harmful publication online of private information about other people. The Privacy Act covers online information, but there are currently some broad exceptions in the Act that the Law Commission thinks should not apply when the publication is particularly offensive. The report’s recommendations to narrow the scope of these exceptions will not apply only to the internet, but they are particularly relevant to online information because it can be viewed and copied so widely. 
For example, there have been cases of people posting naked photographs of their ex-partners online without consent. At the moment, the person posting such photographs can claim the protection of a section of the Privacy Act that exempts information collected or held in connection with a person’s personal or domestic affairs. The report recommends that this exemption should not apply if the collection, use or disclosure of information would be “highly offensive”. The report also recommends an amendment that would prevent others from further using or disclosing such information, even though it is accessible from a “publicly available publication”.
 In an indication that NZ is belatedly catching up with the Australian Do Not Call (DNC) regime the report also commented that
 The Law Commission considered whether a Do Not Call register should be set up by law in New Zealand, as has happened in other countries. A Do Not Call register would allow New Zealanders to register their wish not to receive telephone marketing calls, and to have that wish respected by marketing companies. At present, the Marketing Association operates a Do Not Call register, but participation in the scheme by marketing companies is voluntary. The report recommends that the Marketing Association’s existing register should be put on a statutory footing, making it mandatory for marketers to respect people’s stated preferences. The Law Commission thinks that this change should be implemented through consumer legislation rather than the Privacy Act, however. 
The report does not recommend any changes to the Privacy Act to deal with direct marketing generally, but the Law Commission thinks that it may be necessary in future to consider whether the Do Not Call register should be supplemented by a right in the Privacy Act to opt out of direct marketing. The Commission thinks that privacy issues in relation to online marketing (including tracking of people’s online activity for marketing purposes), and responses to these issues overseas, should be monitored to see if further action is needed in this area in future. The report also recommends that industry bodies should review the adequacy of privacy protection in existing codes for marketing to children.

Marks and Masks

'The Romantic Corporation: Trademark, Trust, and Tyranny' by Malla Pollack in 42(1) University of Baltimore Law Review (2012) comments that
Humans in the United States, and many other market-centric nations, live in a world extensively populated by friendly, helpful, honest, charitable, patriotic beings worthy of our respect and support – none of whom exist. Yet these fellow-beings speak to us humans so often that they must be part of our ingrained perception of the world. Who are they? They are the marketing personas created by totally self-interested businesses. They harm humans not only by misdirection in specific instances, but by providing cover for our government’s improper prioritization of corporate interests over human interests. This systemic distortion of public perception is one aspect of the on-going war between those who prioritize property and those who prioritize humans. 
In trade identity law, the romantic corporation is embodied in Judge Learned Hand’s classic statement that “a reputation, like a face, is the symbol of its possessor and creator and another can use it only as a mask.” Hand did not acknowledge that business entities with merely juristic personhood do not have faces; they only have masks. 
This article opens by interrogating Hand’s famous statement. Second, it places in historical perspective the big-lie used by corporate advocates to blind voters, that the welfare of large corporations is central to the United States’ national interest. Third, this article provides analytical and empirical support for the non-personhood of business entities and the mask-quality of their indicia of trade identity. Fourth, this article discusses and illustrates several ways businesses use their masks to manipulate the human public. Finally, the article explains the difficulty of using law to limit such manipulative tactics.

Civil marriage, civility and civilisation

If nothing else the debate about gay marriage has generated opportunities for law students seeking to write something different or feisty, albeit not necessarily persuasive.

'Civil Marriage: Threat to Democracy' by Jessica Knouse in 18 Michigan Journal of Gender & Law (2012) 361 argues that "civil marriage and democracy are inherently incompatible".

Knouse asserts that that the incompatibility exists -
 whether they are assessed from a trans-cultural perspective that reduces them to their most universal aspects, or from a culturally situated perspective that accounts for their uniquely American elaborations. Across virtually all cultures, civil marriage privileges sexual partners by offering them exclusive access to highly desirable government benefits, while democracy presupposes liberty and equality. When governments privilege sexual partners, they effectively deprive their citizens of liberty by encouraging them to enter sexual partnerships rather than self-determining based on their own preferences; they effectively deprive their citizens of equality by establishing an insidious status hierarchy. While some deprivations of liberty and equality are justified – for example, those that promote social welfare – this article argues that those resulting from civil marriage are emphatically unjustified. The incompatibility that exists on a trans-cultural level is magnified when one considers civil marriage and democracy in their American elaborations. American civil marriage privileges not only sexual partners but also religious, patriarchal, and heterosexist ideologies, while American democracy presupposes respect for the Due Process, Equal Protection, Establishment, and Free Speech Clauses.
Even if American civil marriage could be stripped of its religious, patriarchal, and heterosexist aspects, it would remain an essentially undemocratic institution due to its inherent privileging of sexual partners. Inasmuch as American civil marriage cannot be democratized, this article argues that it should be abolished. It does not, however, propose (as some have) that American civil marriage be replaced by a relatively analogous “civil union” regime. It instead proposes that states remove themselves entirely from the business of affirming sexual partnerships. It explains that abolishing civil marriage would not only enhance American democracy, but also enable states to reallocate their resources away from sexual partners and toward individual providers. While sexual partners do not necessarily deserve government benefits, individuals who provide for dependents do – yet they are often denied such benefits under our current system. It should be emphasized that this article applies only to civil marriage, and does not propose to limit the ability of sexual partners to celebrate their commitments through private ceremonies or to dissolve their relationships according to the terms of private contracts.
She concludes that -
If civil marriage were abolished ... states would need to determine how to proceed. Part III(B), to that end, makes two proposals. First, states should allocate benefits to individual providers rather than sexual partners; second, states should allow sexual partners to enter private contracts that would be enforceable to the same extent that pre-marital agreements are currently enforceable.

The first proposal—that states should allocate benefits to individu- al providers rather than sexual partners—would result in privileging all those who could prove that they were supporting others, physically or financially, regardless of whether their dependents were sexual partners, children, other relatives, or friends. Each provider would receive benefits commensurate with the amount of support they were providing. This would further the state’s interests in encouraging individuals to serve as providers and in privileging individuals who are serving as providers. These are surely legitimate interests, because they prevent the state from having to expend its own resources in caring for dependents.

This first proposal would be preferable to civil marriage in at least two significant ways. First, awarding benefits to individuals rather than couples—based on provider status rather than marital status — would result in a more just distribution of resources. It would allow the state to privilege those who are providers, as opposed to those who are merely married. Anyone who could illustrate that he or she was serving as a provider — regardless of the identity of his or her dependent — would receive benefits. Such a system would likely reduce the number of sexual partners receiving benefits (though sexual partners who served as providers would, of course, continue to receive benefits), and increase the number of other persons receiving benefits. Two sexual partners who were caring for the same child would each be entitled to benefits commensurate with the amount of their individual contributions.

Second, this proposal would be preferable to marriage because its burdens on liberty and equality would be minor in relation to its benefits to society. While it would admittedly encourage individuals to serve as providers and privilege individuals who did serve as providers— thereby burdening both liberty and equality—these burdens would be justified because they would confer substantial benefits on society. They would, indeed, ensure that all citizens had access to the basic resources needed to develop their own identities and interact as equals — which, as discussed ..., is a prerequisite of democracy.

The second proposal — that states should allow sexual partners to enter legally enforceable private contracts fixing the terms of their relationships and making arrangements for their dissolution — would be preferable to marriage because, while many couples currently enter mar- riage without any knowledge of their statutory rights and obligations regarding property, support, and child custody, this proposal would require all couples to take the initiative to create their own agreements. In doing so, it would likely increase the incidence with which couples de- fine the terms of their own relationships, and thereby increase individuals’ awareness of the terms to which they are agreeing. This transition to a regime governed by private contracts rather than default statutory provisions might not be as radical or difficult as some might expect, since many couples already contract around the default marriage and divorce laws by entering pre-marital agreements.
'Is Polygamy Inherently Unequal?' by Gregg Strauss in 122(3) Ethics (2012) 516-544 claims to begin
the task of assessing polygamy as a moral ideal. The structure of traditional polygamy, in which only one central spouse may marry multiple partners, necessarily yields two inequalities. The central spouse has greater rights and expectations within each marriage and greater control over the wider family. However, two alternative structures for polygamy can remove these inequalities. In polyfidelity, each spouse marries every other spouse in the family. In “molecular” polygamy, any spouses may marry a new spouse outside the family. These new models of polygamy face additional difficulties, but they can be egalitarian in principle.

22 April 2012

White Coats and Statistics

Ah yes, but what does it mean, especially when people have been dazzled - or allegedly dazzled - by CSI  and have a problematical grasp of statistics? Are juries victims of white coat magic when presented with claims about DNA, discussed in works such as Truth Machine: The Contentious History of DNA Fingerprinting (University of Chicago Press 2009) by Michael Lynch, Simon Cole, Ruth McNally & Kathleen Jordan and 'Viewing CSI and the Threshold of Guilt: Managing Truth and Justice in Reality and Fiction' [PDF] by Tom Tyler in Yale Law Journal?

In Yusuf Aytugrul v The Queen [2012] HCA 15 the High Court has unanimously held that evidence given at the appellant's trial which expressed results of DNA testing as an exclusion percentage was admissible when accompanied by an equivalent frequency ratio and an explanation of the relationship between the two. The Court accordingly dismissed Aytugrul's appeal against his conviction for the murder of Sevda Bayrak.

The appellant was convicted of murder in the Supreme Court of New South Wales. The prosecution in R v Yusuf Aytugrul [2009] NSWSC 275 relied on evidence from an expert witness, in addition to circumstantial evidence (eg that about five months before Ms Bayrak was killed Aytugrul had published a poem in the Turkish Weekly News declaring that he could not give up his love for the deceased and claims that he had stalked and harassed the victim for months before her death).

The expert witness had conducted a DNA analysis on a hair found on Bayrak's thumbnail. That analysis indicated that Aytugrul could have been the 'donor' of the hair. It also indicated the extent to which the DNA profile found in the hair was common: one in 1,600 people in the general population would be expected to share the DNA profile  ("the frequency ratio") and 99.9% of people would not be expected to have a matching DNA profile ("the exclusion percentage").

Aytugrul appealed to the New South Wales Court of Criminal Appeal. His grounds in Aytugrul v R [2010] NSWCCA 272 included the claim that "a miscarriage of justice occurred because of the prejudicial way in which DNA evidence was expressed to the jury". The Court of Criminal Appeal, by majority, dismissed the appeal. Aytugrul then appealed by special leave to the High Court.

He alleged that the NSW Court of Criminal Appeal should have held that the trial judge erred "in admitting statistical evidence expressed in exclusion percentage terms". Section 137 of the Evidence Act 1995 (NSW) requires a court in a criminal proceeding to refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

Section 135 of the Act relevantly gives a court discretion to refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party or be misleading or confusing.

Aytugrul submitted that, in effect, s 137 required exclusion of evidence that expressed the results of the DNA testing as an exclusion percentage. He further submitted that, if that were not so, the only proper exercise of the general discretion given by s 135 would have seen the evidence excluded.

The High Court unanimously dismissed the appeal. It noted that the evidence given was clear. The evidence of the exclusion percentage was accompanied by reference to the relevant frequency ratio and by an explanation of how the exclusion percentage was derived from the frequency ratio. Aytugrul's submissions accepted that evidence expressed in the form of an exclusion percentage had, of itself, some probative value.

Given that the exclusion percentage and the frequency ratio were different ways of expressing the same statistical statement, the probative value of the exclusion percentage was necessarily the same as that of the frequency ratio. The evidence was adverse to the appellant but in no sense was it unfairly prejudicial, misleading or confusing. The majority of the Court of Appeal was accordingly correct to conclude that neither s 137 nor s 135 of the Act was engaged. The High Court concluded that there was no wrong decision on any question of law. There was not a miscarriage of justice on any other ground.