05 May 2012

Embellished

Two years ago I noted embarrassment in New Zealand involving 'creativity' - more caustically characterised as fraud - in the CVs of senior public sector executives Wilce, Thompson and Davy.

In the US another Thompson is in trouble for CV embellishment in the age of credentialism; this time it's the new Yahoo CEO Scott Thompson. He's being damned for what Yahoo initially described as an “inadvertent error” but subsequently appears to be treating as a serious ethical or reputation problem.

The Financial Times tartly commented that Thompson "hasn’t got a computer science degree after all, whatever his official biography may say".

The debunking was undertaken by Yahoo investor Third Point, which apparently is interested in changing the Yahoo board. It challenged the statement, in Yahoo's filings with the SEC, that "Mr. Thompson holds a Bachelor’s degree in accounting and computer science from Stonehill College".

Third Point argued that Thompson not have a computer science qualification. Stonehill offered a single introductory computer science course during his time at the college and “Stonehill College informed us that it did not begin awarding computer science degrees until 1983 – four years after Mr Thompson graduated”.

Yahoo responded that “This in no way alters that fact that Mr. Thompson is a highly qualified executive with a successful track record leading large consumer technology companies.” Third Point hit back, stating that -
If Mr. Thompson embellished his academic credentials we think that it 1) undermines his credibility as a technology expert and 2) reflects poorly on the character of the CEO who has been tasked with leading Yahoo! at this critical juncture”.
The Washington Post sniffed that -
Thompson’s résumé has even earned itself a satiric Twitter account, "SThompsnsResume", which bears the description “I’m mostly true” and includes posts such as “FACT: Scott Thompson played Steve Urkell on Family Matters.”
Meanwhile the UK Metropolitan Police reports that William 'Billy' Mumford - "one of the UK's most prolific and accomplished art fraudsters, responsible for creating forged artwork potentially worth hundreds of thousands of pounds" - has been sentenced at Southwark Crown Court to two years imprisonment. The forger imitated a range of artists including Sayed Haider Raza, Kyffin Williams, John Tunnard, Francis Newton Souza, Jilali Gharbaoui, Sadanand Bakre and Maqbool Fida Husain.
Operation Sketch - a proactive operation led by the Metropolitan Police Service's Art and Antiques Unit, supported by ArtBeat Special Constables - identified the scam in April 2009 after they were contacted by a major London auction house which had identified an unusually high number of paintings offered for sale by artist Maqbool Fida Husain. ...

Hundreds of paintings and false instruments were found in the back bedroom and garage of Mumford's home address, including gallery stamps, ink pads and Victorian paper used to create a false provenance and dupe art experts and investors alike.

William Mumford admitted creating up to 1000 forgeries and conspiracy to deceive potential buyers and launder the proceeds of the crimes. His co-conspirators placed the works for sale on Ebay and at auction houses throughout the UK, receiving a 20% cut for their efforts. Many of the paintings ended up abroad, some being sold on as genuine several times.
One of Mumford's accomplices
set up an office at home in what was a military style operation that included a white board detailing when and where each painting had been taken and how much it should make. He would spend his days driving round the provincial auction houses in the UK (mainly Hampshire and Sussex) with several paintings, providing elaborate false provenance stories involving late grandparents, wills and a mother downsizing and not being able to accommodate her favourite paintings anymore.
Shepherd and Karen Petrskovsky admitted in interview to furthering the offences by creating complex additional histories for the artworks, thereby increasing their saleability and value.
DC Michelle Roycroft, formerly of the Arts and Antiques Unit, said: "This complicated case highlights the pitfalls of buying works of art from online auction sites.
"These paintings, listed as 'unknown', came with elaborate false provenance that drew buyers into bidding for the items. This, together with William Mumford's execution of the paintings and the attention to detail - using forged gallery stamps and genuine Victorian paper to make labels - fooled hundreds of people both in the UK and worldwide with victims in France, USA and Canada.
Mumford pleaded guilty to conspiracy to defraud, with a sentence of two years imprisonment. His wife pleaded guilty to money laundering, with a sentence of 12 months imprisonment. Associate Martin Petrskovsky went down for 21 months over conspiracy to defraud. Karen Petrskovsky was sentenced to 12 months imprisonment for conspiracy to defraud, along with Anthony Resse (the man with the white board) and Paul Shepherd, who was convicted of fraud by false representation.

Freedoms

From Kicking The Cornerstone of Democracy (The State of Press Freedom In Australia), a rather overheated and self-involved 61 page report [PDF] from the Media, Entertainment & Arts Alliance (aka the journalists union) and IFJ
A legislated right to privacy needs to be balanced with a right to free expression, or celebrity gold diggers will come out to play (Mark Pearson)
The right to privacy is a relatively modern legal concept. Until the late 19th century, gentlemen used the strictly codified practice of the duel to settle their disputes over embarrassing exposés of their private lives.
The first celebrity to convert his personal affront into a legal suit was the author of The Three Musketeers, Alexandre Dumas père, who in 1867 sued a photographer who had attempted to register copyright of some steamy images of Dumas with the Paris Hilton of the day – 32-year-old actress, Adah Isaacs Menken.
The court held his property rights hadn’t been infringed but that Dumas did have a right to privacy and that the photographer had infringed it.
Across the Atlantic in 1890, the top US jurist Samuel D. Warren teamed with future Supreme Court Justice Louis Brandeis to write the seminal Harvard Law Review article “The right to privacy” after a newspaper printed the guest list of a party held at the Warren family mansion in Boston.
Warren and Brandeis wrote: “The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery.”

Celebrities, lawyers, paparazzi and the gossip media were there at the birth of the right to privacy – and the same players occupy that terrain today. While both privacy and free expression are recognised in many national constitutions and in international human rights treaties, Australia is rare among Western democracies in that it has no constitutional or Bill of Rights protection for either. That distinguishes us from the United States, United Kingdom, Canada and New Zealand which all have constitutional or rights charter requirements that proposed laws must be considered for their potential impact on free expression. It is one of the main reasons for the complex array of legislation, court decisions and industry codes of practice limiting Australian journalists’ intrusion into the affairs of their fellow citizens.

Laws covering defamation, trespass, data protection, surveillance, confidentiality, discrimination, consumer law, stalking, court publishing restrictions, suppression orders and copyright all have a privacy dimension. The Privacy Act controls the collection and storage of private information by corporations and government.

There are very few situations where media intrusion into privacy isn’t covered by either one of these laws or the journalists’ code of ethics. Proposals to replace the self-regulated ethics systems with a statutory news media regulator would add yet another layer to the regulation of privacy intrusions.

The crux of the proposed “statutory cause of action for a serious invasion of privacy” is whether a citizen should have the right to sue over a privacy breach and receive an award of damages or an injunction to stop publication.
Over the ditch, Kiwi journalists now have to navigate a judge-made right to privacy that, interestingly, developed from a celebrity suit in which the plaintiffs lost the case.

Mike and Marie Hosking were New Zealand media personalities who had adopted twins and later separated. They asked for their privacy, but a magazine photographer snapped the mother walking the twins in their stroller in a public place. They sued, claiming breach of privacy. The NZ Court of Appeal invented a new action for breach of privacy, but held that it did not apply in this particular case.
The Kiwi privacy invasion test requires “the existence of facts in respect of which there is a reasonable expectation of privacy” and that “publicity given to those private facts that would be considered highly offensive to an objective reasonable person”. But this is set against the backdrop of the New Zealand Bill of Rights Act which protects free expression.
Australia’s High Court famously left the door open for a possible privacy tort in the ABC v. Lenah Game Meats case in 2001, after animal liberationists had secretly filmed the slaughter of possums in an abattoir in Tasmania and the ABC wanted to broadcast the footage – the fruits of the trespass.
It is hard to quarantine this latest push by the federal government from the News of the World scandal in the UK and the Greens-championed Finkelstein inquiry into media regulation.
The government had effectively sat on the Australian Law Reform Commission’s proposal for the statutory cause of action for three years before it released its Issues Paper: A Commonwealth Statutory Cause of Action for Serious Invasion of Privacy last September, in the wake of the phone hacking revelations from London.
Few journalists or their media organisations object to the notion of their fellow citizens’ embarrassing private information being kept secret. However, it is in the midst of a breaking story like that involving collar bomb extortion victim Madeleine Pulver, a celebrity scoop like the Sonny Bill Williams toilet tryst images or the case of the fake Pauline Hanson photos that genuine “public interest” gives way to audience gratification and the resulting boost to circulation, ratings or page views.
Free expression is already greatly diminished by this mire of privacy-related laws and regulations without adding a new statutory cause of action for privacy.
But if this latest proposal is advanced further, journalists should insist on:
  • a free expression and public interest defence reinforced in the strongest possible terms
  • removal of the existing laws it would duplicate
  • a strong “offer of amends” defence like that now operating in defamation law and alternative dispute resolution provisions to deter celebrity gold diggers.
Short of a Bill of Rights enshrining the freedom of the press and free expression, these demands amount to the minimum the news media deserve in a Western democracy.
One reason for a tort, of course, is that protestation of efficacious self-regulation and practitioner codes of ethics have on occasion proved to be quite empty.

With freedom comes responsibility. It's a freedom that has been abused by leading media organisations such as News, an abuse that has been inadequately condemned by the MEAA. That organisation has historically been ineffectual in dealing with instances where "genuine 'public interest' gives way to audience gratification".

All ok, says President Pangloss?

From a 'provocation' in the latest issue of The Summons, the UC Students Law Society journal -
UC Law students are trained to question rhetoric, puncture pomposity, look beneath the glittering façade that cloaks self-interest and even cruelty.

The search for what one legal realist characterised as the ‘skull beneath the skin’ may be invigorating rather than enervating, inspiring rather than productive of the depression and disengagement that’s of increasing concern to law academics and bodies such as the Tristan Jepson Memorial Foundation. If you want to change the world you need to know what the world is like, rather than being soothed by lullabies from Collins Street or promises from the big white building with the flagpole on the other side of the lake.

What do those students think of the latest speech by Bathurst CJ of the NSW Supreme Court and the indignant response by Law Council of Australia president Catherine Gale, the apologist for Law Inc and provider of reassurance that we don’t really need to worry about law as an industry or a profession?
Are law students indeed aware of that exchange and of underlying issues in the shape of legal practice or education, issues that are reflected in developments such as offshoring to law factories in India and a relentless ‘partnering’ of major law groups with overseas competitors?

Gale is reported as fearing that Bathurst CJ has left the public with a distorted perception of the major firms' work practices and culture: he is apparently wrong to suggest young lawyers are being exploited and indoctrinated into cultures in which professional duties could be "superseded for personal gain". Moreover, “to suggest that … our young lawyers are exposed to exploitation in the pursuit of profit, thereby directly conflicting with their professional duties, is simply incorrect".

Ms Gale reportedly does not believe that large law firms value their lawyers according to billable hours, although conceding that "a large law firm is no different in many respects from any other large business that employs a large number of people”. I, on the other hand, do not believe in the tooth fairy, santa claus or the omniscience of the MBAs who gave us the Global Financial Crisis.

Gale was responding to ‘Commercialisation Of Legal Practice: Conflict Ab Initio, Conflict De Futuro’ [PDF], a speech by the Chief Justice to the Commonwealth Law Association Regional Conference on 21 April.

Bathurst CJ noted that
conflicts between mercantilism and professional obligations have been present since the time of the first legal practitioners and will continue to be grappled with in the future. Second, this conflict between profit and professional ethics is at the core of concerns over the commercialisation of legal practice. Third, commercialisation is not inherently bad or evil; it is a different set of means and ends, which both complement and conflict with the means and ends of professional legal practice.
 Commercialisation – in particular the growth of mega-practices - is “not some inherent evil, whittling away at the noble heart of legal practice”. However, at the heart of concerns about commercialisation is 
the question of whether profit motivations compromise the core values and obligations of professional conduct. For example, the rise of litigation funders and mega-firms, the public listing of incorporated legal practices, the increased prevalence of private arbitration, international outsourcing, and the growing role of in-house counsel, all raise questions about how duties to clients and the courts may conflict with business practice, profit incentives and corporate expectations. In a phrase: Profit versus professional ethics. 
In his cogent speech the Chief Justice comments that there is an ongoing need to “engage in fearless, open discussion about how age-old professional ethics should be upheld and reinforced in the modern world”. Open discussion and debate “is, in itself, an expression of ethical practice”.

A more positive contribution by the Law Council, and by parts of legal academia that equate professionalism with silence, would seem to be a useful part of that debate.

Sexting

The Victorian Parliament's Law Reform Committee has called for submissions for its Inquiry into Sexting.

The Inquiry terms of reference define sexting as “the creating, sharing, sending or posting of sexually explicit messages or images via the internet, mobile phones or other electronic devices by people, especially young people”.

The Committee is to examine -
the creating, sharing, sending or posting of sexually explicit messages or images via the internet, mobile phones or other electronic devices by people, especially young people, (known as 'sexting') .... and report no later than 30 June 2012, including:
  • the incidence, prevalence and nature of sexting in Victoria;  
  • the extent and effectiveness of existing awareness and education about the social and legal effect and ramifications of sexting; 
  • the appropriateness and adequacy of existing laws, especially criminal offences and the application of the sex offenders register, that may apply to the practice of sexting, particularly with regard to the creation, possession and transmission of sexually suggestive or explicit messages and images in circumstances where a person:
  • creates, or consents to the creation of, the message or image for his or her own private use and/or the use of one or more other specific persons; or
  • creates, or consents to the creation of, the message or image and without their knowledge and/or their consent the message or image is disseminated more broadly than the person intended.
 The Inquiry, rolled over from last year, coincides with tabling last month of a report by the Victorian Law Reform Commission that called for the removal of the state's sex offender register (and by extension from nationally accessible criminal databases) of young people listed for sexting offences.

The Law Reform Commission recommended establishment of a specialist panel to review the circumstances of over 4000 Victorians registered as sex offenders under the Sex Offenders Registration Act 2004 (Vic) and "remove people from the register who do not present a risk", thereby ensuring that the state registration scheme applies only to those offenders who posed a genuine risk of sexually abusing children. Acting Law Reform Commission chairman David Jones commented that although it was unusual for the consequences of criminal proceedings to be revisited, in the interests of fairness the government needed to do so in these cases. That comment was endorsed by Police Chief Commissioner Ken Lay, who referred to police struggling to manage the register, and reflected submissions by a range of bodies noted in chapter 5 of the report.
Last year the Commission commented that -
The sex offenders register, maintained by Victoria Police, contains the details of individuals convicted of nominated sexual offences. The registration scheme aims to ensure police remain informed of the whereabouts and personal details of sex offenders. The scheme also aims to prevent registered sex offenders working with children.
There are Victorian and Commonwealth legislative prohibitions on sexting where minors are involved – where the image depicts a person engaging in sexual activity who is under the age of 18 or who appears to be under the age of 18. Sentencing for these offences can result in inclusion on the sex offenders register.
Sexting where images are forwarded via mobile phone, particularly without the consent of a party to the image, poses serious privacy issues. Concern has focused on some of the longer-term consequences for people who engage in sexting – with the risk that permanent digital images could be distributed through social media and on the internet.
Commentators have pointed to a lack of understanding of the law among young people, and the potential consequences if they are convicted of serious sexual offences in relation to sexting and placed on the sex offenders register.
The pervasive use of mobile phones, many including high definition photo and video cameras, means technology and practices among some segments of the population may have outpaced legislative regimes.

Sexting involving minors raises particularly difficult legal and policy questions. The conduct can range from the unwise but relatively harmless, where it may be between consenting teenagers, to the more insidious and predatory, including where images can fall into the hands of repeat child sex offenders. The evident difficulties distinguishing in law between these types of conduct, with the broad range of behaviours in between, will arguably continue to be a challenge for policymakers both here and in other jurisdictions.

Health Libertarianism

Given Australian debate about state-subsidised homeopathic and other 'complementary' medicine such as Reiki the article 'The Origins of American Health Libertarianism' by Lewis Grossman in Yale Journal of Health Policy, Law, and Ethics (forthcoming) is of interest.

Grossman examines -
the persistent American demand for freedom of therapeutic choice as a popular constitutional movement with its origins in the nation’s earliest years. It also shows how multiple concepts of freedom, in addition to bodily freedom, have contributed to the concept of a constitutional right to medical liberty.

There is a deep current of belief in the United States that people have a right to choose their preferred treatments without government interference. Cries of “Death Panels” are routinely directed against health care reform proposals that might limit patients’ access to medical products and procedures. FDA is furiously attacked, on freedom of choice grounds, for withdrawing approval of drugs. Polls show overwhelming support for the legalization of medical marijuana.

This attitude of therapeutic libertarianism is not new. Drawing mainly on primary historical sources, this Article examines early American arguments in favor of freedom of therapeutic choice. First, it considers the views and statements of Benjamin Rush, an influential founding father who was also the most prominent American physician of his era. The Article then analyzes the antebellum battle against state medical licensing laws waged by botanical practitioners and their supporters. This triumphant struggle, though occurring almost entirely outside of court, was waged in explicitly constitutional terms. It thus offers one of the most striking examples of a successful popular constitutional movement in American history. The Article also demonstrates that at its origins, American commitment to freedom of therapeutic choice was based on notions of economic freedom, freedom of religion, and freedom of inquiry, as well as bodily freedom.
He comments that
The inexorable rise of frequently effective scientific medicine and “wonder drugs” in the early twentieth century posed a serious challenge to alternative medicine. Nevertheless, a notable feature of the story of Ameri-can alternative medicine during the past century has been its remarkable ability to thwart attempts by the government (frequently backed by organized medicine and the pharmaceutical industry) to restrict access to alternative practitioners and products. Interest in and use of alternative remedies have soared since the 1970s, along with broad cultural skepticism about science and technology. Modern campaigns for medical freedom outside orthodox medicine, though often led by financially-interested alternative medicine practitioners and manufacturers, are regularly bolstered by massive outpourings of popular support. Moreover, the rhetoric supporting these campaigns bears many similarities to the antebellum struggle against medical licensing, including “thin constitutional” claims of individual rights, populist rages against unholy alliances between government and the medical establishment, and multidimensional freedom arguments invoking not only bodily liberty, but also economic freedom and freedom of conscience and religion. ...
It remains to be seen, however, whether promoters of freedom of therapeutic choice within orthodox medicine can construct a persuasive multi-pronged argument similar to the Thomsonians’ rhetoric of the nine-teenth century. Many people arguing for freer access to unapproved pharmaceutical products do not embrace economic libertarianism and broader hostility to government. To the contrary, they value FDA’s role as a gate-keeper ensuring drug safety and effectiveness, and they energetically campaign for more government funding of medical research. In the 1980s, for example, the leaders of a demonstration at FDA headquarters by AIDS activists demanding earlier and greater access to experimental drugs warned: “Aids [sic] advocates must be careful to keep their agenda  ... from being confused with the Bush/Wall Street Journal/Heritage Foundation Agenda of sweeping drug industry deregulation.”
Furthermore, freedom of religion arguments are largely absent from the rhetoric of activists urging freedom of patient choice within orthodox medicine, perhaps because modern scientific medicine, with its materialist and empirical underpinnings, has a tenuous connections to spiritual matters. Finally, and importantly, contemporary arguments for liberty within orthodox medicine rarely invoke the freedom of inquiry strand of medical freedom. Since the middle of the twentieth century, the gold standard for establishing medical effectiveness has been the meticulously structured, highly restricted, placebo-controlled clinical study. In this regime, the unregulated use of unproven remedies tends to undermine, rather than advance, the pur-suit of truth.
It is thus possible that freedom of therapeutic choice within orthodox medicine will not assume the features of a broad popular constitutionalist movement. But this result is not foreordained. Perhaps bodily freedom arguments alone can drive such a movement. Or maybe conditions will change so as to enhance the modern relevance of one or more of the other traditional strands of medical freedom. In any event, the stubborn American insistence on freedom of therapeutic choice is something policymakers inevitably will have to wrestle with as they struggle to devise solutions to the health care crisis of the twenty-first century.

Reproductive Autonomy

'Reframing Roe: Property Over Privacy by Rebecca Rausch in 17(1) Berkeley Journal of Gender, Law & Justice (2012) argues that -
Roe v. Wade has received much criticism from both sides of the political spectrum. Though the perspectives of the two camps differ significantly, players from each share at least one common critique of the landmark decision. Specifically, both sides are skeptical about the lack of an express Constitutional right to privacy, on which the Supreme Court in Roe based its decision to find a “fundamental” right to abortion. This lack of Constitutional context and legal history renders Roe vulnerable. In addition, pro-choice advocates find fault with the privacy basis because it yields no positive rights to funding or access support from the government; it is relegated to the land of negative rights, which might provide the right woman with reproductive choice free from government intrusion, but for the wrong woman - one with limited resources - the so-called “choice” becomes nonexistent.
This article investigates whether the absence of positive rights and the foundational flaw of the right to privacy might be adequately addressed by reframing Roe in the language of property - specifically, a woman’s property right in her uterus. Assuming arguendo the anti-choice tenet that the fetus is a person from the moment of conception, separate from the woman carrying it, the article sets forth an argument that the fetus is an unwanted trespasser in the woman’s uterus whom the woman has a right to eject. Further, the article posits that this property-based notion of abortion might give rise to government funding for abortions based on a Constitutional obligation to maintain a system designed to protect women’s uterine property, similar to states’ obligations to maintain a police force in order to protect other forms of private property, including the removal of trespassers. In short, this article provides a new basis for abortion rights that takes advantage of the long-standing traditional notions of property law and the right to exclude, as well as the public support that attaches to that right, manifested through anti-trespass systems. After establishing the property-based argument, the article explores what might be gained, and what might be lost, by adopting such a premise for abortion rights and access. Among these considerations is whether the anti-trespass scheme might push the abortion discourse beyond the typical polarizing rhetoric surrounding both the pro-choice and anti-choice camps, thus generating space for forward movement and meaningful work.

02 May 2012

Innovation

'Innovation and Antitrust Policy' (Minnesota Legal Studies Research Paper No. 12-14) by Thomas Cotter argues that -
antitrust can play a limited but non-negligible role in fostering innovation in three principal ways. First, and as a general matter, antitrust promotes innovation when it performs its traditional role of penalizing practices such as horizontal price fixing and other anticompetitive practices that offer no plausible procompetitive justification, even when such practices happen to involve intellectual property rights (IPRs). As a general matter, in other words, antitrust should avoid IP exceptionalism. Second, however, in some limited contexts, antitrust should deviate from this general standard by showing greater leniency toward joint conduct, for example on the part of standard setting organization members, that is intended to make new technology more widely available. Third, in yet more limited contexts, antitrust should deviate from the general standard in the opposite direction, by playing a more aggressive role in circumstances in which the conduct at issue poses even an objectively small risk to future innovation, if that risk (should it come to pass) threatens substantial social harm, and decisionmakers can be confident that the potential procompetitive benefits of tolerating the conduct at issue are only modest. For the most part, however, to the extent patent and other IP laws are perceived as conferring excessive protection or otherwise as undermining, rather than advancing, their stated purpose of promoting the progress of science and the useful arts, reform must come from the IP side, not the antitrust side. Antitrust’s role in promoting innovation is important but nevertheless constrained by the limited reach of the statute and by courts’ competence to second-guess legislative judgments about the appropriate scope of IPRs.

Procreation

'The Descent of Responsible Procreation: A Genealogy of an Ideology' by Julie Nice in Loyola of Los Angeles Law Review (forthcoming) comments that -
This article traces the genealogy of responsible procreation, which has emerged as the primary defense of the same-sex marriage ban. To put it succinctly, the responsible-procreation defense surmises that same-sex couples already procreate responsibly, and that the rights and responsibilities of marriage should be limited to furthering the goal of encouraging more responsible procreation by heterosexuals. 
This article seeks to illuminate the responsible procreation defense by tracing how it emerged and how it has functioned and fared in constitutional challenges.

 What does this genealogy of responsible procreation reveal? The roots of responsible procreation are undoubtedly religious and the defense particularly bears resemblance to a Vatican statement penned by then-Cardinal Joseph Ratzinger in 1987. The presuppositions of the responsible procreation defense are in considerable tension with current social and legal realities. Most saliently, responsible procreation has been rejected as a justification for limiting heterosexuals' constitutional rights. Its starring role was in welfare reform’s racialized and gendered rhetoric demonizing poor, single, black mothers. On welfare reform's heels, Congress hastily harnessed responsible procreation for use in the Defense of Marriage Act, racing against the much-feared first state recognition of same-sex marriage. When first subjected to trial at the state level, the responsible-procreation defense lacked credible supporting evidence.

But leading social conservative academics and advocates came to its rescue. The newly-elaborated defense was rejected as "unpersuasive" in a sleeper test case as well as in the notorious decision invalidating the same-sex marriage ban in Massachusetts. Eventually, however, several state intermediate and high courts endorsed it. But other state high courts have rejected the defense, and some state governments and now the federal government have disavowed the defense. It also has failed to withstand the rigor of its first federal trial, succumbing to the overwhelming weight of evidence against its logic. In addition, most courts since the federal trial have rejected the defense in recent challenges to various anti-gay measures. In short, the responsible-procreation defense appears to be ideological, invidious, and on the wane.

Moral Rights

'On the Origins of Le Droit Moral: How Non-Economic Rights Came to Be Protected in French IP Law' by Susan Liemer in 19 Journal of Intellectual Property Law (2012) 65-116  comments that
 In France, le droit moral, the moral right, provides legal protection for the non-economic interests of writers, visual artists, and performing artists. The received wisdom is that le droit moral developed from the work of German philosophers like Kant and Hegel, as well as many French theorists. In this article, however, I argue that these rights developed in France long before German philosophers and French scholars articulated the theoretical underpinnings. 
This article identifies the origins of le droit moral in the history of French intellectual property law. It reports on such disparate influences as Cicero’s complaints against his publisher, a 1504 Parisian court decision finding for a writer against an unauthorized printer, and the detailed regulations imposed on the playwrights of the Comédie Française during the ancient regime. Although le droit moral was not included in the core copyright statutes forged during the French Revolution, court decisions in the next decades protected le droit moral in matter-of-fact language. I submit that the sensibility to protect these rights was already developed in the culture of France, thanks to its eighteenth century dramatists.
For a contemporary view readers should turn to works such as Maree Sainsbury's study of the Australian statute and the 1177 page Moral Rights (London: Sweet & Maxwell 2010) edited by Gillian Davies & Kevin Garnett

Privacy and Credit Reporting reform

Today's media release from the Australian Attorney-General announces "Privacy Laws Set For Reform".
Australia’s privacy laws will be reformed to better protect people’s personal information, simplify credit reporting arrangements and give new enforcement powers to the Privacy Commissioner. 
“It is fitting to announce major legislative reforms to the Privacy Act during Privacy Awareness Week,” Attorney-General Nicola Roxon said. “In an increasingly digital world, both consumers and governments have a role to play to protect privacy. In introducing these changes, the Gillard Government is doing its bit to protect the privacy of Australian families.” 
The Attorney explained that key changes to benefit consumers are: 
  • clearer and tighter regulation of the use of personal information for direct marketing  
  • extending privacy protections to unsolicited information 
  • making it easier for consumers to access and correct information held about them 
  • tightening the rules on sending personal information outside Australia 
  • enhancing the powers of the Privacy Commissioner to improve the Commissioner’s ability to resolve complaints, conduct investigations and promote privacy compliance. 
The Government will also modernise credit reporting arrangements. Benefits for consumers include: 
  • making a clear obligation on organisations to substantiate, or show their evidence to justify, disputed credit listings 
  • making it easier for individuals to access and correct their credit reporting information 
  • prohibiting the collection of credit reporting information about children 
  • simplifying the complaints process by removing requirement to complain to the organisation first, complaints can be made directly to the Privacy Commissioner, and by introducing alternative dispute resolution to more efficiently deal with complaints.
“There have been big changes to the way we access finance since 1990 when the existing credit reporting provisions came into effect,” Ms Roxon said. “Many consumers have expressed their frustration at not being able to understand their credit rating. “These changes will provide much more power to consumers to be able to access and, if necessary, correct their credit reports.” 
The Government expects the credit industry will benefit because the reforms provides a more accurate picture of an individual’s credit situation to help them make a robust assessment of credit risk, which is expected to lead to lower credit default rates. 
The changes will be achieved through amendments to the Privacy Act 1988, which will be introduced into the Parliament in the winter sitting period. These changes represent the culmination of an extensive consultation process and will implement the Government’s response to the Australian Law Reform Commission’s report – For your information: Australian Privacy Law and Practice.
No sign, of course, of the proposed statutory tort of serious invasion of privacy.

Moguls and Managers

I spent last night reading the report by the UK parliament’s Culture Media & Sport Select Committee into News International and phone-hacking, a foretaste of the Leveson report.

It is a fascinating document for anyone concerned with privacy and the governance of very large enterprises operating in difficult environments. It is of particular interest for anyone who has been reading the Finkelstein report, Australian denunciations of the proposed statutory tort of serious breach of privacy, and the Convergence Review noted here.

The House of Commons committee report, as I've noted elsewhere, will presumably to be denounced by News publications as egregiously partisan, a hatchet job from which some Tory MPs sensibly or cravenly dissented. A more persuasive criticism would be that it fails to adequately recognise the difficulties inherent in micromanagement of a global corporation in the 'content industries' and the extent to which the people at the top of other large enterprises are ignoring problems or being shielded from bad news. However, it offers a damning assessment of corporate governance at News, which remains one of Australia’s dominant media groups and operates one of the largest US television networks.

The report asks whether Rupert Murdoch “turned a blind eye and exhibited wilful blindness to what was going on in his companies and publications”. It condemns “the lack of effective corporate governance at News Corporation and News International”. It criticises several News senior executives, an indication that the corporate culture is at fault, although the responsibility for that culture starts at the top.

One comment is that
In its 2010 Report, Press standards, privacy and libel, the Committee ... was “struck by the collective amnesia afflicting witnesses from the News of the World”. During the inquiry which led to the production of that Report, the forgetfulness of News International reached new levels on 15 September 2009, when Les Hinton, formerly Chief Executive of News International, appeared before the Committee and stated that he did not know, could not recall, did not remember or was not familiar with the events under scrutiny a total of 72 times. ... In 2009, witnesses from News International had noticeably less difficulty remembering the investigative measures to which the company claimed it had been subject following the arrest of Clive Goodman and Glenn Mulcaire.
It goes on to state that
We stand by the conclusions over phone-hacking in the Committee’s 2010 Report on Press standards, privacy and libel. As this Report sets out, those conclusions have been vindicated—and, indeed, reinforced—by evidence which started to emerge because of civil actions later that year, from continued pursuit of the matter by the Guardian and other newspapers, and from further disclosures made as a result of our work in 2011. Unlike the results of previous police and Press Complaints Commission inquiries, our conclusions have stood the test of time. It is a matter of great regret, therefore, that so much time elapsed before further action was finally taken by News International and the Metropolitan Police, in particular, to investigate phone-hacking. ...
Far from having an epiphany at the end of 2010, the truth, we believe, is that by spring 2011, because of the civil actions, the company finally realised that its containment approach had failed, and that a ‘one rogue reporter’ — or even ‘two rogue journalists’ —stance no longer had any shred of credibility. Since then, News Corporation’s strategy has been to lay the blame on certain individuals, particularly Colin Myler, Tom Crone and Jonathan Chapman, and lawyers, whilst striving to protect more senior figures, notably James Murdoch. Colin Myler, Tom Crone and Jonathan Chapman should certainly have acted on information they had about phone- hacking and other wrongdoing, but they cannot be allowed to carry the whole of the blame, as News Corporation has clearly intended. Even if there were a ‘don’t ask, don’t tell’ culture at News International, the whole affair demonstrates huge failings of corporate governance at the company and its parent, News Corporation.

The history of the News of the World at hearings of the Committee is a long one, characterised by “collective amnesia” and a reluctance fully and fairly to provide the Committee with the information it sought. News International has repeatedly stone- walled, obfuscated and misled and only come clean, reluctantly, when no other course of action was sensible and when its wider commercial interests were threatened.
The report concludes that Murdoch “is not a fit person to exercise the stewardship of a major international company".

Cynics might regard that conclusion as an echo of the famous finding - subsequently ignored by the UK Government, at the expense of a large number of pensioners and investors - that colourful entrepreneur Robert Maxwell (The Capn Bob of 'crash & splash' fame) was unfit.

There is no indication in the report that Murdoch has engaged in financial impropriety and no smoking gun demonstrating that he consciously commissioned illegal behaviour. It is important to recognise that in law there is a difference between a parliamentary inquiry and conviction in a trial regarding allegations of civil/criminal offences. Given that, like his centenarian mother, he appears to be hale & hearty, he may respond to the condemnation with vigorous protestations of innocence - presumably having been misled by over-enthusiastic underlings - and take a well-earned early retirement. At 81 it’s surely time to relax, enjoy the garden, talk to sympathetic biographers and engage in good works like his mother. Some Murdoch family members will presumably relinquish positions in the group, being replaced by proxies or luckier siblings. Fortune favours the brave or those who weren't in the executive carriages enroute to the 2012 corporate train wreck.

Irrespective of what happens with the Murdoch clan and restive private equity (a restiveness centred on revenue and control rather than a profound commitment to exemplary corporate ethics), the Commons report makes interesting reading when considered alongside the Finkelstein Review and the Convergence review noted earlier this week. All three pose questions about what media we want to have - or deserve to have, given that News (like its peers) merely fed a public appetite for sensation - and what are the appropriate regulatory mechanisms.

The Convergence and Finkelstein reviews pose questions about corporate governance in the Australian media industry and about the political commitment (or capacity) to reform. Unsurprisingly the reports have been denounced, on occasion with a hyperbole that approaches chutzpah. There is no need, it seems, for government supervision and media executives/proprietors can of course be safely left to regulate themselves in this the best of all possible governance worlds. The three reports suggest that we might take a harder look. Can we leave regulation to those whose behaviour indicates that they need to be regulated? Do we require board members and senior executives to be “fit and proper persons”, individuals who are socially responsible and vigilant in self-policing of corporate misbehaviour? What happens if they are one-eyed?

Murdoch’s “blind eye”, wilful or otherwise, might be attributed to managerial overcommitment, with arguments for example that the empire is simply too big for close supervision and employees have started going feral after disregarding messages from the top or saving the chairman and close associates from bad news. A more dour view is that there is an ethical hollowness at the heart of News ... and at the heart of its competitors, some of which have been identified in the Leveson inquiry as engaging in the same problematical (even illegal) practices. From a historical perspective corporate misbehaviour in the media industry isn't exceptional. Murdoch - unlike some of his executives - compares favourably with figures such as Lord Beaverbrook (adept at insider trading en route to becoming a UK cabinet minister), Robert Maxwell (adept at the use of defamation action to silence inquiries while he gleefully looted the corporate pension fund and employed the very best legal technicians), the zany Ezra Norton, Alan Bond, Christopher Skase, Conrad Black and Kerry Packer.

An assumption of Australian exceptionalism – that corporate misbehaviour is somehow restricted to Tokyo, London and New York rather than filtering down to local executive suites and board rooms – is naïve and regrettable. It’s abetted by a generation of MBA factories that have turned a Murdochian blind eye to notions of corporate social responsibility and best practice corporate governance, evident in for example the ingenuity [PDF] of blue chip James Hardie in offshoring its assets while leaving asbestos victims behind.

The Finkelstein Review suggested that we need to look hard – and make some tough decisions – regarding the balance between media self-regulation and public oversight. Given the media’s preoccupation with the Slipper Affair it is unlikely that either an ALP or Coalition Government will make those decisions.

Leeks

Following up the health data breach incidents noted here the UK Information Commissioner's Office reports that the Aneurin Bevan Health Board has become the first National Health Service organisation to receive a monetary penalty following a serious breach of the Data Protection Act.

The Board was hit with a £70,000 penalty for sending a patient's medical report, featuring what is described as "explicit details" regarding that person’s health, to the wrong person in March 2011.

The error occurred when a consultant emailed a letter to a secretary for formatting, but failed to include sufficient information for the secretary to identify the correct patient. The doctor also misspelt the name of the patient at one point, which led to the report being sent to a former patient with a very similar name. The latter accordingly received a detailed psychological report about a mental health patient.

The Office concluded that neither of the two Health Board staff involved in the incident had received data protection training. It also concluded that the Health Board did not have adequate checks in place to ensure that personal information was sent to the correct person.

In discussing the breach, the Office publicly reminded the NHS that it “holds some of the most sensitive information available ... it is therefore vital that organisations across this sector make sure that their data protection practices are adequate". On to the next data breach report, as leaks aren't only found among the leeks.

The penalty contrasts with those in the US incidents, which amounted to around US$1 per person rather than the £70,000 per person.

30 April 2012

Speech

From the short particulars in the HCA special leave application regarding the appeal from the Full Court of the Supreme Court of South Australia in The Corporation of the City of Adelaide v Corneloup & Ors [2011] SASCFC 84 -

The second and third respondents were prosecuted in the Magistrates Court of South Australia after they preached and canvassed in Rundle Mall in 2009 without permission, in breach of clauses 2.3 and 2.8 of a by-law made by the first respondent (Adelaide).

Those clauses read as follows:
2. No person shall without permission on any road: - ...
2.3 preach, canvass, harangue, tout for business or conduct any survey or opinion poll provided that this restriction shall not apply to a designated area as resolved by the Council known as a “Speakers Corner” and any survey or opinion poll conducted by or with the authority of a candidate during the course of a Federal, State or Local Government Election or during the course and for the purpose of a Referendum; ... 
2.8 give out or distribute to any bystander or passer-by any handbill, book, notice, or other printed matter, provided that this restriction shall not apply to any handbill or leaflet given out or distributed by or with the authority of a candidate during the course of a Federal, State or Local Government Election or to a handbill or leaflet given out or distributed during the course and for the purpose of a Referendum.
The second and third respondents, who are members of a religious organisation called “Street Church”, brought proceedings in the District Court seeking a declaration that the clauses were invalid. Judge Stretton declared the first three words of cl 2.3, “preach, canvass, harangue”, and all of cl 2.8 to be beyond Adelaide’s by-law making powers, but that the by law could be saved by severing them.

Adelaide’s appeal to the Supreme Court (Doyle CJ, White and Kourakis JJ) was dismissed. The Full Court held that the by-law was made “for the convenience, comfort and safety” of the inhabitants of the City of Adelaide as authorised by s 667(1)9(XVI) of the Local Government Act 1934 (SA). It was not persuaded that the by-law, in its application to the regulated conduct, was such an unreasonable or disproportionate measure that it fell outside the legislative authority conferred by those words. It was not unreasonable to take the view that the regulated conduct, if left uncontrolled, would interfere with commercial activity and detract from the public’s use of and enjoyment of Adelaide’s streets.

However, the Court went on to find that the by-law was inconsistent with the implied constitutional freedom of political communication. It considered that an obligation to obtain permission to speak on political matters was incompatible with the system of democratic and responsible government established under the Constitution. Even though the by-law was reasonably appropriate and adapted to the convenience, comfort and safety of the inhabitants Adelaide, it secured that objective in terms which were calculated to restrict impermissibly public speech on political and governmental matters.

The applicant has given s 78b Notices. Adelaide supports the grant of special leave. The second respondent is unrepresented. The third respondent has not filed an appearance or a summary of argument.

The questions of law said to justify a grant of special leave include:
Is a permit system that enables a local council to balance the competing interests of various road users within a municipality, including those who seek to use roads for the purpose of political communication, reasonably appropriate and adapted to promoting the convenience of road users, such that it does not offend the implied freedom of political communication? 
To what extent, if any, should the validity of a by-law be judged by reference to the possibility that it may be erroneously administered?

Convergence Review

The 81 page report of the Australian Government's Convergence Review is now online.

The Review features 31 recommendations, some of which differ from those in the report of the Finkelstein Review released last month and several of which resemble those in a litany of reports highlighted in Nick Herd's Networking: Commercial Television in Australia (Strawberry Hills: Currency House 2012).

The need for a new approach

1. The policy framework for communications in the converged environment should take a technology- neutral approach that can adapt to new services, platforms and technologies.
a. Parliament should avoid enacting legislation that either favours or disadvantages any particular communications technology, business model or delivery method for content services. 
b. The focus of legislation should be on creating a sustainable structure within which a new independent communications regulator can apply, amend or remove regulatory measures as circumstances require.
2. There should be no licensing or any similar barrier to market entry for the supply of content or communications services, except where necessary to manage use of a finite resource such as radiocommunications spectrum.

3. Large enterprises that provide professional content services to a significant number of Australians should be expected to continue to:
a. have proposed changes in ownership scrutinised 
b. meet community expectations about standards applicable to the content they provide c. contribute in appropriate ways to the availability of Australian content.
4. These enterprises (which would be called content service enterprises) should be identified by the following criteria:
a. they have control of professional content they deliver 
b. they meet a threshold of a large number of Australian users of that professional content 
c. they meet a threshold of a high level of revenue derived from supplying that professional content to Australians.
The thresholds for revenue and users would be set at a high level so that only the most substantial and influential entities are within the category of a content service enterprise.

5. The appropriate threshold levels of revenue and of users should be determined following a review of relevant media enterprises by the new communications regulator. The appropriate threshold levels should be reviewed periodically by the regulator.

Media ownership

6. Media ownership and control rules should promote a diverse range of owners at a local and national level.
a. Ownership of local media should continue to be regulated through a ‘minimum number of owners’ rule. The existing ‘4/5’ rule should be updated to take into account all entities that provide a news and commentary service and have a significant influence in a local market. The new communications regulator should be able to provide an exemption from the rule in exceptional circumstances, if it is satisfied that a transaction will provide a public benefit in a specific local market. 
b. The new communications regulator should have the ability to examine changes in control of content service enterprises of national significance. It should have the power to block a proposed transaction if it is satisfied—having regard to diversity considerations—that the proposal is not in the public interest.
7.The following rules should be removed and replaced by a ‘minimum number of owners’ rule and a public interest test:

  • the ‘75 per cent audience reach’ rule
  • the ‘2 out of 3’ rule
  • the ‘two-to-a-market’ rule
  • the ‘one-to-a-market’ rule.
Content-related competition issues

8. The new communications regulator should be empowered to instigate and conduct market investigations where potential content-related competition issues are identified.

9. The new communications regulator should have flexible rule-making powers that can be exercised to promote fair and effective competition in content markets. These powers should complement the existing powers of the Australian Competition and Consumer Commission to deal with anti-competitive market behaviour. These powers should only be exercised following a public inquiry.

Content standards

10. There should be a technology-neutral and flexible approach to media content standards.
a. The new communications regulator should be responsible for all compliance matters related to media content standards, except for news and commentary. This will include the responsibility for administering the new national classification scheme proposed by the recent Australian Law Reform Commission review. An independent classification board would be established as part of the organisational structure of the new regulator to undertake specific classification functions. 
b. An independent self-regulatory news standards body operating across all media should be established by industry to enforce a media code aimed at promoting fairness, accuracy and transparency in professional news and commentary.
i. Content service enterprises should be required to be members of the news standards body, which should be established and adequately funded and resourced by its industry members.
ii. As it is in the public interest that such a body be appropriately resourced, the government should make a financial contribution.
iii. News and commentary providers that are not content service enterprises should be encouraged to join the news standards body.
iv. The news standards body should have credible sanctions and the power to order members to prominently publish its findings.
v. The news standards body should be able to refer to the new communications regulator instances where there have been persistent or serious breaches of the media code. The new communications regulator should also be able to request the news standards body to conduct an investigation.
c. The new arrangements outlined at paragraph 10(b) should be implemented in stages and the co-regulatory broadcasting codes in relation to news standards should not be repealed until the communications regulator is satisfied that the new self-regulatory arrangements are working effectively. 
d. Content service enterprises should also be subject to:
i. children’s television content standards, where appropriate 
ii. other content standards made by the new communications regulator where there is a case for regulatory intervention, with the starting point being the matters covered by the existing co-regulatory codes made under the Broadcasting Services Act 1992.
e. Content providers that are not of sufficient size and scope to be classified as a content service enterprise should be encouraged to opt in to content standards applying to content service enterprises, or to develop their own codes.
11. Where the new communications regulator is responsible for approving and enforcing content standards, it should have:
a. discretion to approve industry codes or adopt its own standards 
b. discretion to determine the most effective and efficient complaints and investigation procedures 
c. direct enforcement powers in response to a breach of codes or standards 
d. a graduated range of effective remedies to ensure compliance.
12. The new communications regulator should also:
a. certify whether complaints systems, privacy controls and other measures in self-regulatory industry codes meet best practice standards 
b. work with industry to provide transparent information to content users about what they can do to control access to content, building on government programs to educate consumers about media and digital literacy 
c. set technical standards that assist content users in managing access to content (such as parental locks or age-verification systems).
Australian content: screen

13. The quotas and minimum expenditure obligations applying to the free-to-air and subscription television sectors should be repealed and replaced with the uniform content scheme set out in recommendations 14 and 15.

14. Content service enterprises that meet defined service and scale thresholds should be required to invest a percentage of their total revenue from professional television-like content in the production of Australian drama, documentary or children’s content or, where this is not practicable, contribute to a new converged content production fund.

15. The government should create and partly fund a new converged content production fund to support the production of Australian content.

16. Premium television content exceeding a qualifying threshold should attract the 40% offset available under the Producer Offset scheme. This will bring premium television content in line with the current rate of offset available for feature film production.

17. Interactive entertainment, such as games and other applications, should be supported by an offset scheme and the new converged content production fund.

18. The following transitional arrangements should apply for commercial free-to-air and subscription television broadcasters until they are included within the uniform content scheme:
a. For commercial free-to-air television broadcasters:
i. The existing 55% transmission quota that is imposed on each broadcaster’s primary channel should continue. 
ii. There should be a 50% in Australian sub-quota content obligations for drama, documentary and children’s content to reflect the two additional channels each broadcaster currently operates that do not attract any quotas.
iii. The broadcasters should be able to count Australian content shown on their digital multichannels towards meeting the expanded sub-quota obligations. 
iv. The existing 80% for Australian-produced advertising on each broadcaster’s primary channel should be maintained.
b. For subscription television providers:
i. The 10% minimum expenditure requirement on eligible drama channels should be maintained. 
ii. A 10% minimum expenditure requirement should be placed on children’s and documentary channels.
Australian content: radio

19. Australian music quotas should continue to apply to analog commercial radio services offered by content service enterprises and be extended to digital-only radio services offered by content service enterprises.

20. Music quotas should not be applied to occasional or temporary digital radio services.

21. Given the evolving state of internet-based music services, quotas should not be applied at this time.

Local content: television and radio

22. Commercial free-to-air television and radio broadcasters using spectrum should continue to devote a specified amount of programming to material of local significance.

23. A more flexible compliance and reporting regime for television and radio should be implemented for the obligations set out in recommendation 22.

24. The current radio ‘trigger event’ rules should be removed.

Public and community broadcasting

25. The charters of the ABC and the SBS should be updated to expressly reflect the range of existing services, including online activities.

26. While Australian content quota obligations continue for commercial free-to-air television broadcasters as a transitional measure, quotas should also apply to the public broadcasters.
a. The primary ABC channel should have a 55% Australian content quota consistent with the obligation on commercial free-to-air television broadcasters. 
b. Reflecting its multicultural charter obligations, the SBS should be required to target half this amount (22.5%).
Spectrum allocation and management

27. There should be a common approach to the planning, allocation and management of both broadcasting and non-broadcasting spectrum that includes:
a. a market-based pricing approach for the use of spectrum, and one that provides greater transparency when spectrum may be used for public policy reasons 
b. spectrum planning mechanisms that explicitly take into account public interest factors, and social and cultural objectives currently reflected in the Broadcasting Services Act 1992 
c. ministerial powers to reserve and allocate spectrum to achieve policy objectives considered important by the government and the Australian community, including public and community broadcasting, which have contributed to the diversity of the Australian broadcasting system 
d. certainty for spectrum licence holders about licence renewal processes.
28. Existing holders of commercial broadcasting licences should have their apparatus licences replaced by spectrum licences to enable them to continue existing services. In addition:
a. as broadcasting licence fees will be abolished with the removal of broadcasting licences, the regulator should set an annual spectrum access fee based on the value of the spectrum as planned for broadcasting use 
b. commercial broadcasting licensees should have the flexibility to trade channel capacity within their spectrum.
29. The new communications regulator should allocate channel capacity on the sixth planned television multiplex (known as the ‘sixth channel’) to new and innovative services that will increase diversity. The use of capacity on the sixth multiplex for the distribution of community television services should continue. Existing commercial free-to-air television broadcasters and the ABC and the SBS should be precluded from obtaining capacity on the sixth multiplex.

Implementing the new approach

30. The Review’s recommendations should be implemented in three distinct stages:
a. Stage 1: Stand-alone changes that can be achieved in the short term should be made to policies, programs and legislation, including the public interest test that will apply to changes in control of content service enterprises. 
b. Stage 2: New content services legislation should replace the Broadcasting Services Act 1992 and existing classification legislation. 
c. Stage 3: The reform of communications legislation should be completed to provide a technology-neutral framework for the regulation of communications infrastructure, platforms, devices and services.

31. The new communications regulator should be established in time to implement the new regulatory arrangements recommended for stage 1, and assume the remaining functions of the Australian Communications & Media Authority at the conclusion of stage 2 of the implementation process outlined in recommendation 30

Faces

The Identification Legislation Amendment Act 2011 (NSW) has come into effect.

The crucial part of the statute, in Schedule 2, amends the Oaths Act 1900 (NSW).

It provides that -
34 Identification of person making statutory declaration or affidavit
(1) A person who takes and receives a statutory declaration or affidavit in this State (an "authorised witness"):
(a) must see the face of the person making the declaration or affidavit, and
(b) must know the person who makes the declaration or affidavit or confirm the person’s identity in accordance with the regulations, and
(c) must certify on the declaration or affidavit in accordance with the regulations that this section has been complied with.
Maximum penalty (on summary conviction before the Local Court): 2 penalty units.
(2) An authorised witness may request a person who is seeking to make a statutory declaration or affidavit to remove so much of any face covering worn by the person as prevents the authorised witness from seeing the person’s face.
(3) The regulations may make provision for or with respect to compliance with this section and, in particular, may:
(a) provide that a person is not known to an authorised witness unless the authorised witness has known the person for a minimum specified period, and
(b) provide for the steps that will satisfy the requirement to confirm the identity of a person making a statutory declaration or affidavit (including prescribing the kinds of documentation that may or must be relied on for that purpose), and
(c) exempt an authorised witness from the requirement to comply with subsection (1) (a) for medical or other reasons.
(4) A failure to comply with this section does not affect the validity of any statutory declaration or affidavit.
(5) In this section: "face" and "face covering" have the same meanings as they have in the Law Enforcement (Powers and Responsibilities) Act 2002.
Section 3 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)  defines "face" as
a person’s face:
(a) from the top of the forehead to the bottom of the chin, and
(b) between (but not including) the ears.
"Face covering" is defined as
an item of clothing, helmet, mask or any other thing that is worn by a person and prevents the person’s face from being seen (whether wholly or partly).
Sections 19A and 19B of that Act deal with the "Power of police officer to require removal of face coverings for identification purposes" and "Failure of person to remove face covering when required".

Takeaways

After reading 'Busy GPs view bodies in car parks' by Sam Rigney in today's Newcastle Herald I'm wondering about the scope for a drive-in death certificate service ... bundle your deceased relatives or friends into the car, drive them past the doctor and collect both the fries, a complementary Coke and certification that the passenger has indeed expired.

Registration of deaths in NSW is covered under ss 36 and 41 of the Births, Deaths & Marriages Registration Act 1995 (NSW), with the expectation that a state register will encompass all deaths. (A stillbirth is registered as a birth but not as a death.)

The Herald reports that
Dead bodies are being driven to car parks and back lanes for viewing by overworked GPs who baulk at attending funeral homes to sign cause of death and cremation certificates. The Newcastle Herald has spoken to four funeral directors who say the "grossly inappropriate" and "disgusting" practice occurs in the Hunter every week.
After a person dies their treating doctor is obligated to fill out the relevant paperwork and declare them deceased before that person is transported to a funeral home. 
"This practice was introduced so doctors didn’t have to go out in the early hours of the morning to do it", one Hunter funeral director, who asked to remain anonymous, said. 
But once a person is pronounced dead and taken to a mortuary the Australian Medical Association requires their doctor to view the body, sign on a cause of death or fill out a cremation certificate. 
The director said in some instances, rather than viewing the bodies at an appropriate location, such as a mortuary, the doctors ask for the bodies to be brought over to their practice. 
The bodies were transported by vans with the deceased placed in a body bag on a stretcher. 
The deceased person was often viewed in a public car park at the surgery and in some cases on main roads. 
"If people knew their deceased mother or grandmother was being viewed in an open car park they would find it disgusting", the director said.
"It’s grossly inappropriate and just the height of arrogance that this has to happen."
Funeral directors are, of course, paragons of best practice and the very highest ethics.

Hunter Urban Medicare executive Mark Foster is reported as commenting that
We are aware of instances where a funeral director has offered to bring a deceased former patient’s body to a chosen location for viewing by their GP and where this has occurred it was always done with respect and discretion.

29 April 2012

Bright Side

Stephen McAllister looks on the bright side in 'Neighbors Beware: The Constitutionality of State Sex Offender Registration and Community Notification Laws'.

That article, in 29 Texas Tech Law Review (1998) 97-136, comments
All states now have sex offender registration laws, and all states have some form of community notification regarding, or public access to registrant information. This article evaluates two major constitutional challenges that are frequently raised in litigation involving these laws: (1) that they violate constitutional double jeopardy and ex post facto prohibitions; and (2) that they violate due process and equal protection principles. The article concludes that such challenges generally should fail and these laws should be considered presumptively constitutional. The article argues that sex offender registration and notification laws are not intended to be punitive measures, do not have historical counterparts that would have been considered “punitive”, and serve important if not compelling non-punitive public safety interests.

Health Privacy Breaches

Two announcements from the US about action under national health privacy law.

In the first the federal Department of Health & Human Services (HHS) last month reached a US$1.5 million settlement with insurer BlueCross BlueShield of Tennessee regarding a 2009 data breach. That settlement is the first under the Health Information Technology for Economic and Clinical Health (HITECH) Act Breach Notification Rule noted in past posts on this blog.

BlueCross notified the HHS Office for Civil Rights that 57 unencrypted hard drives had been stolen from a 'secure' room in a facility vacated by BlueCross as part of its move to new accommodation. The 'data closet' was ostensibly protected by "biometric and keycard scan security", a magnetic lock and an additional door with a keyed lock. The property manager also provided general security services for the premises. The drives featured health information concerning approximately one million individuals.

BlueCross' 2009 statement indicated that
The hard drives were part of a system that recorded and stored audio and video recordings of coordination of care and eligibility telephone calls from providers and members to BlueCross’ former Eastgate call center located in Chattanooga. The hard drives that were stolen contained data that included protected health information data of some members of the health plan. This data included member names and identification numbers and, on some but not all recordings, a diagnosis/diagnosis code, date of birth and/or a Social Security number.
The notification, consistent with mandatory data breach reporting, resulted in an investigation by the Office for Civil Rights. The latter concluded that BlueCross had failed to implement appropriate administrative safeguards and failed to provide physical safeguards to adequately protect the unencrypted information. Criticism of inadequate administrative safeguards centred on the failure to conduct a required security evaluation in response to operational changes (ie BlueCross failed to assess risks associated with movement to the new accommodation).

At a few cents more than a dollar per individual the penalty is unimpressive and compares unfavourably with remuneration of BlueCross senior executives. Media coverage suggests that BlueCross has spent over US$17 million in responding to the data breach over two and a half years. More importantly, it is required to implement a Corrective Action Plan that features random HHS auditing of BlueCross data storage devices, including unannounced site visits to facilities housing portable devices.

 The announcement was followed by news of a HHS settlement with Phoenix Cardiac Surgery regarding alleged violations of the HIPAA Privacy and Security Rules, which predate the HITECH Act and do not invoke mandatory data breach reporting.

The HHS Office for Civil Rights launched an investigation in February 2009 following a complaint alleging Phoenix "impermissibly disclosed electronic protected health information by making it publicly available on the Internet".

The Office found that Phoenix failed to adequately train employees on appropriate handling of protected health information. Phoenix did not have appropriate and reasonable administrative, physical and technical safeguards for the protection of patient data. In an egregious example, that resembles the Medvet incident in Australia, Phoenix allegedly "posted over 1,000 separate entries" of electronic personal medical information "on a publicly accessible, Internet-based calendar”. Phoenix employees emailed such information to their own personal email accounts. Perhaps not the sort of organisation you'd trust with your medical data.

The Office alleged that Phoenix had failed to appoint a security officer as required by HIPAA. Phoenix did not perform an accurate and thorough risk assessment and allegedly failed to gain “satisfactory assurances in a business associate agreement” from its commercial associates, an indication that Phoenix did not meet requirements under HIPAA.

The Office's Director commented that
This case is significant because it highlights a multi-year, continuing failure on the part of this provider to comply with the requirements of the Privacy and Security Rules. We hope that health care providers pay careful attention to this resolution agreement and understand that the HIPAA Privacy and Security Rules have been in place for many years, and OCR expects full compliance no matter the size of a covered entity.
No matter. The settlement with HHS was a US$100,000 and commitment to a one year corrective action plan.