08 December 2012

Pranking and Privacy

The media brouhaha about the 2DayFM prank call to the King Edward VII Hospital - and the subsequent death of a nurse, which has elicited cries of outrage from UK publications with a history of egregious privacy abuses - can be addressed using three questions -
  • Would you like your medical information disseminated via a national media broadcast.
  • Do you believe that restriction of such information is appropriate?
  • Is there a fundamental public interest - as distinct from public curiosity (not the same thing) - in unauthorised disclosure of your information or that of a celebrity?
The recorded 'prank call' by Sydney radio presenters Mel Greig and Michael Christian to the British hospital involved personal information about a celebrity patient. What is the compelling public interest - discussed in my symposium paper [PDF] last week on the Australian privacy tort and the Leveson Report - in release of that information?

Broadcasting of conversations that the nurses would have reasonably assumed were private, for example because there apparently wasn't identification that the presenters were pretending to be members of the patient's family, should raise concerns under Australian and UK law.

In the UK the activity echoes instances of blagging, addressable under s 55 of the Data Protection Act 1988. That Act includes the 'investigative journalism' defence that the offenders under s 55 acted "with a view to the publication by any person of any journalistic, literary or artistic material" (s 32) and in the reasonable belief "that in the particular circumstances the obtaining, disclosing or procuring was justified as being in the public interest" (s 55). Under s 68 of the Act 'health record' means any record that "(a) consists of information relating to the physical or mental health or condition of an individual, and (b) has been made by or on behalf of a health professional in connection with the care of that individual". 'Health professional' (s 69) includes "a registered medical practitioner" and "a registered nurse or midwife".

The statute centres on recorded - in particular electronic - personal information. Putting aside questions about whether the hospital comes under coverage of the Act as a 'data controller' we might speculate that the nurse/s provided information from their personal knowledge rather than from a record, so that they were not in breach of the Act.

Was there negligence by the presenters, in line with Wilkinson v Downton [1897] 2 QB 57? It was conceivable that the nurses would be reproved once the blagging was discovered, but a suicide?

The hospital conceivably failed in its duty - a statutory duty if it is a data controller - with responsibility for example to train and supervise staff and contractors. Posts in this blog have for example noted penalties imposed by the UK Information Commissioner's office on the Aneurin Bevan Health Board and St George’s Healthcare NHS Trust.

In Australia such a broadcast would breach the Surveillance Devices Act 2007 (NSW), specifically the prohibition in s 11 on unauthorised people publishing a private conversation obtained using a "listening device", ie a device that can "overhear, record, monitor or listen" to a conversation. What's the status when recording was undertaken within Australia of a call that involves people in the UK?

Given the permissive stance of the Australian Communications and Media Authority (ACMA) in dealing with misbehaviour by commercial broadcasters and the weakness of self-regulation under the Commercial Radio Codes of Practice we probably shouldn't expect much action from ACMA or 2DayFM's management unless there's an ongoing moral panic. (Given the corporate response to criticism of Alan Jones we might indeed expect the management to claim that the station and the presenters have been grossly victimised.)

The call apparently did not breach the specific privacy provisions in the industry codes because those provisions are restricted to news and current affairs programs, not entertainment.

Code of Practice 6 regarding Interviews and Talkback Programs specifies that a licensee must not broadcast the words of an identifiable person unless:
a) That person has been informed in advance or a reasonable person would be aware that the words may be broadcast 
b) In the case of words which have been recorded without the knowledge of that person, that person has subsequently, but prior to the broadcast, expressed consent to the broadcast of their words.
The UK nurses do not appear to have given consent after the recording had occurred but prior to the broadcast.


The UK Government appears to have followed the path of discretion in deciding that courts will be left to deal with questions about consummation in the recognition of same sex marriage.

In Australia there is no requirement under the Marriage Act 1961 (Cth) for consummation. Section 23B of that statute identifies 'Grounds on which marriages are void'  -
 (a) either of the parties is, at the time of the marriage, lawfully married to some other person; 
(b) the parties are within a prohibited relationship; 
(c) by reason of section 48 the marriage is not a valid marriage; 
(d) the consent of either of the parties is not a real consent because: 
(i) it was obtained by duress or fraud; 
(ii) that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or 
(iii) that party is mentally incapable of understanding the nature and effect of the marriage ceremony; or 
(e) either of the parties is not of marriageable age; and not otherwise.
The Family Court accordingly advises that
The Court may declare a marriage invalid on the following grounds:
  • At the time the parties were married, one of them was married to someone else. 
  • The parties are in a prohibited relationship. 
  • The parties did not comply with the laws in relation to the marriage in the place they were married. 
  • Either party was not of a legal age to marry. 
  • Either of the parties did not give their real consent to the marriage because: consent was obtained by duress or fraud, one party was mistaken as to the identity of who they were marrying or the nature of the ceremony, one party was mentally incapable of understanding the nature and the effect of the marriage ceremony.
The Court will NOT declare a marriage invalid on the following grounds:
  • Non-consummation of the marriage 
  • Never having lived together 
  • Family violence or 
  • Other incompatibility situations. 
In the UK the Matrimonial Causes Act 1973 provides that a marriage can be annulled if one of the couple has the incapacity to consummate it, or a man or woman has wilfully refused to do so.

Specifically section 12 states that
A marriage celebrated after 31st July 1971 shall be voidable on the following grounds only, that is to say—
(a) that the marriage has not been consummated owing to the incapacity of either party to consummate it; 
(b) that the marriage has not been consummated owing to the wilful refusal of the respondent to consummate it; 
(c) that either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise; 
(d) hat at the time of the marriage either party, though capable of giving a valid consent, was suffering (whether continuously or intermittently) from mental disorder within the meaning of  the Mental Health Act 1983 of such a kind or to such an extent as to be unfitted for marriage; 
(e) that at the time of the marriage the respondent was suffering from venereal disease in a communicable form; 
(f) that at the time of the marriage the respondent was pregnant by some person other than the petitioner; 
(g) that an interim gender recognition certificate under the Gender Recognition Act 2004 has, after the time of the marriage, been issued to either party to the marriage; 
(h) that the respondent is a person whose gender at the time of the marriage had become the acquired gender under the Gender Recognition Act 2004
In English common law consummation involves vaginal penetration, with courts historically endorsing Dr Lushington's differentiation in D E v  A G (1845) 163 ER 1039 between "ordinary and complete intercourse" (ie "the proper meaning of the term") from "partial and imperfect intercourse" even if they didn't embrace the good doctor's explanation that without the power to consummate "neither of the two principle ends of matrimony can be attained, namely a lawful indulgence of the passions to prevent licentiousness, and the procreation of children, according to the evident design of Divine Providence". 

It appears that the UK Government has decided to make same-sex marriage a mirror of opposite-sex marriage except for the religious ceremony, leading some observers to speculate that validity will be dependent on  consummation.

What's consummation, given that not all LGBTIQ people embrace the hetero penetration model?

Lushington stated that
… difficulty lies in the meaning of the term " sexual intercourse." How is it to be defined? This is a most disgusting and painful inquiry, but it cannot be avoided. 
Sexual intercourse, in the proper meaning of the term, is ordinary and complete intercourse; it does not mean partial and imperfect intercourse; yet, I cannot go to the length of saying that every degree of imperfection would deprive essential character. There must be degrees difficult to deal with; but if so imperfect as scarcely to be natural, I should not hesitate to say that legally speaking, it is no intercourse at all. I can never think that the true interests of society would be advanced by retaining within the marriage bonds parties driven to such disgusting practices. Certainly it would not tend to the prevention of adulterous intercourse, one of the greatest evils to be avoided. … 
In this difference, I think, lies the true distinction. If there be a reasonable probability that the lady can be made capable of a vera copula of the natural sort of coitus, though without power of conception I cannot pronounce this marriage void. If, on the contrary, she is not and cannot be made capable of more than an incipient, imperfect, and unnatural coitus, I would pronounce the marriage void. 
I will very briefly state my reasons. In the case first supposed, the husband must submit to the misfortune of a barren wife, as much when the cause is visible and capable of being ascertained, as when it rests in uudiecoverable and unascertained causes. There is no justifiable motive for intercourse with other women in the one case more than in the other. But when the coitus itself is absolutely imperfect, and I must call it unnatural, there is not a natural indulgence of natural desire; almost of necessity disgust is generated, and the probable consequences of other connexions with men of ordinary self control become almost certain. I am of opinion that no man ought to be reduced to this state of quasi unnatural connexion and consequent temptation, and, therefore, I should hold the marriage void. The condition of the lady is greatly to be pitied, but on no principle of justice can her calamity be thrown upon another. 


'Adoptive Expectations: Rising Sons in Japanese Family Firms' (NBER Working Paper No. 16874, 2011) by Vikas Mehrotra, Randall Morck, Jungwook Shim, Yupana Wiwattanakantang comments that
The practice of adopting adults, even if one has biological children, makes Japanese family firms unusually competitive. Our nearly population-wide panel of postwar listed nonfinancial firms shows inherited family firms more important in postwar Japan than generally realized, and also performing well – an unusual finding for a developed economy. Adopted heirs’ firms outperform blood heirs’ firms, and match or nearly match founder-run listed firms. Both adopted and blood heirs’ firms outperform non-family firms. Using family structure variables as instruments, we find adopted heirs “causing” elevated performance. These findings are consistent with adult adoptees displacing blood heirs in the left tail of the talent distribution, with the “adopted son” job motivating star managers, and with the threat of displacement inducing blood heirs to invest in human capital, mitigating the so-called “Carnegie conjecture” that inherited wealth deadens talent.
The authors note in a pre-print version that
adoption remains common in modern Japan. Paulson (1983) reports that 30% of her survey respondents respond affirmatively that “an adoptee was among their relatives”. Comparative statistics are difficult because many countries keep adoptions confidential, but Yamahata (1977) estimates adoption far more popular in modern Japan than in any other country, with the possible exception of the United States. 
However, most U.S. adoptees are children, while Japanese adoptees are overwhelmingly adults. Moriguchi (2007) reports that 2.5% of U.S. children are adopted, the highest rate per capita in the world: 31.4 per 1000 births, or 127,000 adoptions (Child Welfare Information Gateway, 2004) in 2000. This compares with only 1.6 child adoptions per 1000 births in Japan that year. Of the 80,790 adoptions reported in Japan in 2000, only 1,718 were of children; and all but 362 of these were by grandparents or step‐parents. The other 79,072 adoptions, 97.9% of the total, were of adults by adults. 
Since 1988, the law permits two forms of adoption (yôshi). One form, special adoption (tokubetsu yôshi), resembles Western practices, and permanently transfers a child younger than six (eight in certain foster care cases) to adoptive parents. A special adoption severs all legal links between the child and its biological parents, and is designed to advance the welfare of a needy child (Hayes and Habu, 2006). This is a new, imported, and rarely used procedure. The courts approve only a few hundred each year in Japan – 521, 362, and 350 in 1995, 2000, and 2002, respectively. The traditional form of adoption, now called ordinary adoption (yôshi engumi or fûtsu yôshi), remains far more common. The adoptee is usually an adult male who, in return for an inheritance, agrees to carry forward the adopting family’s name. Both parties to the adoption transaction must be above the age of consent (over 15) or court approval is required – except for adoptions of one’s grandchildren or step‐children (Civil Code §798). The adopted heir must also be at least a day younger than the adoptive parent. Adoptees’ average age at adoption is over twenty, and the vast majority of adoptions registered in Japan each year between consenting adults (Bryant, 1990, p. 300). Elsewhere, adult adoption is vanishingly rare (Kitsuse, 1964). O'Halloran (2009) notes that Japan’s “… continuing tradition of providing for the adoption of adults, is without any comparable precedent among developed nations.” 
… More recent statistics show much higher rates of adult adoption than earlier in the postwar period, averaging 97 to 98% from 1985 on. Thus, of the 83,505 adoptions registered by Koseki offices in 2004, only 1,330 (2%) were of children. The higher rates of child adoption in the years immediately following the war are perhaps due war orphans. 
Ordinary adoption sanctifies the voluntary severing of most, but not all, ties to one’s birth parents and their replacement with fealty to one’s new parents. The adoptee may often remain in contact with his birth parents, and may even inherit from them. If the adoptive relationship is disrupted, the adopted child may return to his biological parents. 
Calling ordinary adoption a transaction is appropriate, for Hayes and Habu (2006, pp. 2‐3) explain that “in Japanese society there continues to be a vein of unsentimental pragmatism towards adoption arrangements. There is a fairly widespread view that it is ethically acceptable for parents to become adopters for worldly objectives, even if they do not intend from the outset, to love the child as their own.” Lebra (1989, p. 203) clarifies that “nurturance and intimacy were secondary or irrelevant to the mandate of professional succession, and often were completely absent from the adoptive relationship – even where the adoptee was destined to become the new head of the household.” 
Most ordinary adoptees are of adult sons (Paulson, 1984, p.165, 289) because the practice is designed to rescue biologically ill‐fated families, not to provide for a needy child.  Hayes and Habu (2006, p. 1) elaborate: “Adoptions can be used to reconstruct patriarchal families. Families with superfluous sons would pair them off in a combined marriage and adoption to families with daughters.” Since the incest law only proscribes sex between biological siblings, a daughter and adopted son may marry. That a term, muko yôshi, exists to describe a husband‐who‐is‐also‐an‐adopted‐brother indicates this to be an accepted and relatively commonplace form of adoption; and Paulson (1983) reports 55% of adoptions in 1981 to be of sons‐in‐law. Of course, if a desirable potential son is already married, an adult married couple can also be adopted in a single transaction. Parents who adopt adult sons either lack biological sons or desire better quality sons than nature provided. Although Nakane (1967) argues that families seldom disinherit biological son in favor of an adopted son, subsequent ethnographic work convincingly refutes this. Beardsley et al. (1959) report at least one instance of adopted sons superseding biological sons in the histories of 25% to 33% of rural families; Pelzel (1970) estimates its frequency at 25%, and Bachnik (1983) puts its incidence at 34%. Pre‐modern records indicate even higher frequencies (Bachnik, 1983, p. 163). 
The patriarch of a family business can thus adopt a new son, say a star manager, should his biological sons prove uninterested or incapable of honoring the family name. This occurs with some regularity (Paulson, 1984, 165‐75; Kurosu, 1998; Hayes and Habu, 2006, p. 2). In this context, translating yôshi as adoption might be confusing. Terms like protégé or successor seem at least as appropriate as adopted son – the standard translation. Similar relationships, between family business patriarchs and favored junior associates who become “like sons”, may well occur less visibly in Western countries. 
This echoes a linguistic ambiguity as to what constitutes a family versus a firm. A Japanese family business is referred to as a house (ie ...), as in the House of Mitsui; but ie can also mean family or household. This conflation also occurs in West, as with the House of Windsor and J.P. Morgan’s 19th century investment bank, the House of Morgan (Goodman, 2000, p. 20). Repackaging a business as a family is readily dismissible as “an ideological obfuscation created by those at the top of the economic hierarchy.” But something more is clearly going on where a top manager subsequently becomes the head of an adopting family as well as that family’s businesses. 
It is tempting to see adoption as a liberal adaptation allowing “competent individuals to surmount rigid social barriers” in Japan’s hierarchical society (Burke, 1962, p. 108‐9). Haynes and Habu (2006, p. 12) more warily suggest that “the overlap between family and business concerns, potentially at least, forms an integrated social ethos in which the aspirations of a powerless child can find a place.” Although, they caution against pressing this too far, noting that many ordinary adoptions are within extended families, Macfarlane (2002) notes that “those who were adopted were not necessarily or even primarily blood relatives” and cites several studies that support the view that “adoption became a mechanism for social mobility” in pre‐modern Japan. 
The Japanese government restricts adult adoption for fiscal reasons. The 1988 revision to the tax law prevents testators evading inheritance taxes via multiple adoptions. Thenceforth an adopter with one or more biological children may bequeath to one adoptee only, and an adopter lacking any biological children may bequeath to two adoptees (Nakagawa, 1991, 89). A parent might still adopt many sons in order to have a broader choice of successors, but since only one may inherit, the supply of eager second, third, and forth adoptees is likely to be meager. 
Foreigners periodically sought to change Japanese adoption practices, which seemed immoral to Chinese and Western sensibilities alike. Chinese legal imports, beginning with the Taiho Code of 702 A.D., sought to impose Confucian morals restricting adoptions to blood relatives (Mass, 1989, 9‐11, 25, 72). In seeming deference to European sensibilities, Japan’s imported Civil Code (§792‐3) mandates that the adopted child be at least a day younger than the adopting parent (Takenoshita, 1997, p. 9). 
Both sought to fit Japanese pegs into foreign holes. The Taiho Code was soon “improved”, and modern registries sometimes let a younger parent adopt an older child “by mistake” (Nishioka, 1991, pp. 232‐4). 
Foreign criticisms of Japanese adult adoption practices are not entirely groundless. Before the Great War, families adopted children as de facto slaves, sold by their biological parents; and brothel owners adopted their prostitutes. Draft dodgers became “only sons” of childless families, and thus escaped conscription (Paulson, 1984, 278‐9). Adult adoptions are also used to hide affaires or to circumvent money lending laws (Bryant, 1990). 
But Japan’s adult adoptions doubtless primarily evoke condemnation because they challenge the conventions of other cultures. Elsewhere in East Asia, adoptions are a duty of blood relatives, but “the more rigid forms of Confucianism have not constrained non‐relative adoption in Japan to nearly the same degree as elsewhere” (Kaji, 1999; see also Bryant, 1990, n. 32). This shocked and appalled Confucian traditionalists, like Dazai Shundai (1680‐1747), who deplores Japan's “lawlessness”, and singles out its “barbarous” and “promiscuous” adoptions as “a major example of chaos” (Lebra, 1989, p. 185; quoting Kirby, 1908). In the same vein, the 19th century historian Shigeno Aneki (1887) compares the “evils” of adoption to those of imperial abdication (Lebra, 1989, p. 186). 
The above is a vast oversimplification, but conveys the gist of adoption practices as they affect Japanese family businesses. We distill two key economic implications. 
First, Japanese family businesses confronted with an heir who is incapable or ill‐disposed to take over the family business can readily adopt a more able son. Adoption lets family firms expand their successor searches beyond biological sons, and even beyond blood kin and in‐laws, to include virtually the same applicant pool a widely held professionally managed firm might tap. In theory at least, Japanese family firms ought to be able to meld such benefits as family ownership confers with the free‐ranging competition among potential successors that helps put the most able managers in charge of professionally‐run firms. 
Second, the threat of adoption may induce a greater work ethic in biological children, for “the eldest son too was sometimes forced out into the world, if a more competent younger or adopted son was appointed to succeed to the family property or rights” (Burke, 1962, p. 109). Adult adoptions may thus help counter the famous Carnegie Conjecture that inherited fortunes so deaden initiative and distort perspective as to virtually guarantee failure in running a great business.


Reading the consultation paper regarding establishment of a national foreign ownership register for agricultural land, foreshadowed by the Commonwealth Government in October. The final design of the register "will take into account the need to improve transparency of foreign ownership in agricultural land without imposing unnecessary burdens on investors or duplicating work already undertaken by State and Territory governments".

In June this year the Government’s announced a departmental working group (Treasury; Department of Prime Minister and Cabinet; Department of Agriculture, Fisheries and Forestry; Department of Foreign Affairs and Trade; Department of Sustainability, Environment, Water, Population and Communities; Department of Regional Australia, Local Government, Arts and Sport; and the Department of Resources, Energy and Tourism) to "canvass the issues and consult with the community on the development of a national foreign ownership register".

All well, until you remember that although "the Australian Government has an interest in foreign investment and land management, State and Territory governments have primary constitutional responsibility for land management, including land titles for agricultural land". The working group will accordingly need to work with State and Territory governments "to consider elements of a national register, and discuss how the register could interact with existing land registration systems and processes".

Information from the register will supposedly better inform public debate through improved transparency regarding foreign ownership. That's problematical, given poujadist attitudes about 'ownership of the national farm' and the interaction of register - recording what has been sold - with the foreign investment regulatory regime (ie permission for land acquisition under the Foreign Acquisitions & Takeovers Act 1975 (Cth) and Foreign Investment Review Board regime) and the Government indicating that Australia "continues to maintain an open and welcoming approach to foreign investment".

The expectation is that
Any registration obligations under the register will be of an administrative nature. While it will not form part of the foreign investment screening process where foreign investors need prior approval from the Government before investing in certain Australian agricultural land, over time a register will assist in informing the Government and the community about emerging investment trends. 
 There is no definitive integrated national database of land ownership. One fuzzy indication is provided by the December 2010 Australian Bureau of Statistics Agricultural Land & Water Ownership Survey, in which the ABS estimated that 88.6% of agricultural land was entirely Australian owned at the end of 2010, with a further 5.9% of agricultural land being 'majority Australian owned'. Not all agricultural land is of equal value and the ABS has provided an estimate only. The Australian Bureau of Agricultural and Resource Economics and Sciences 2012 Foreign Investment & Australian Agriculture report categorised recent foreign buyers of agricultural land in three main groups
• agribusiness companies seeking to extend their activities up the supply chain to secure sources of supply;
• investment or pension funds seeking profits from owning and operating Australian agricultural land, but where those operations do not form part of any larger agricultural or food business; and
• purchases of farmland by foreign owned mining companies.
That report also noted that although there may have been an increase in foreign ownership of Australian agricultural land in recent years "this ownership trend has not always been upward", as "foreign investors sell as well as buy land, with foreign landholdings tending to expand and contract at different times". The 2011 ABS Agricultural Land & Water Ownership Survey found that over 90 per cent of water entitlements for agricultural purposes are entirely Australian owned.

One difficulty reflects different data collection systems for regulatory and statistical purposes. Some definitions of agricultural land classify the dirt according to the use/business activities associated with that land (eg the Foreign Investment Review Board, the Australian Bureau of Statistics, the Australian Taxation Office and the Australian Securities Exchange). Others classify land on the basis of its location (notably many State and Territory registers).

The paper comments that -
At the State and Territory level, only Queensland maintains a foreign ownership of land registration system, which is operated in conjunction with the land title registration system operating in that State. This registration system is focussed on all foreign acquisitions of land in Queensland rather than specifically on agricultural land. 
In Queensland, as in other States and Territories, all investors must register their acquisitions of land titles. 
The existence of different land registration and screening regulations across Australia opens the potential for duplication of data collection and hence the reporting burden on foreign investors. 
Each State and Territory already has well-established land registration systems and processes. There is not, at a national level, a land register or title system. Additionally, States and Territories also capture ownership information relating to water access rights within register systems. These registers do not currently capture foreign ownership. There is currently no national level water register or title system. 
The design of a national foreign ownership register for agricultural land will need to consider ways, if any, for business-to-government reporting processes to be standardised across all levels of government. To minimise the regulatory reporting burden, an important principle for the collection of the data, is that data is collected as a by-product of existing business processes. For example, this could include the re-use of data obtained through State and Territory land title systems to populate a register.
 Queensland is the only state that has a specific register for monitoring foreign ownership of land, under the Foreign Ownership of Land Register Act 1988 (Qld). That statute requires notification for all land rather than just agricultural land. The level of foreign ownership in that state appears to be low: around 2.6% of all land in Queensland as at 30 June 2011.

Establishment of the national register will need to grapple with -
• notification systems for land use  
• differences between states in requirements for registration of water rights
•  mechanisms for monitoring obligations to update the register eg on a change of control where no transfer occurs 
• registration of long-term leases (interests in land for the purposes of the Foreign Acquisitions and Takeovers Act 1975 (Cth) but not registered in Victoria).

07 December 2012

US Declassification

From the Transforming the Security Classification System report to the US President by the Public Interest Declassification Board
As requested by the President, the Public Interest Declassification Board (the Board) researched and studied the security classification system in cooperation with the National Security Advisor to design a fundamental transformation of the security classification system. The Board sought to understand how classified records of every level of sensitivity are managed and how different users influence classification and declassification decisions at the front-end and the back-end of the system. The Board met extensively with stakeholders inside and out- side of government during its study: senior government officials, Executive departments and agencies (agencies), distinguished civil servants, the Congress, leading technologists, experts from public interest, civil society and transparency groups, historians, classifiers, declassifiers, and archival researchers. Its research led the Board to understand the challenges the system presents to all users and to solicit suggestions and ideas for its transformation. The findings of the Board are conclusive; present practices for classification and declassification of national security information are outmoded, unsustainable and keep too much information from the public. The prevalence of electronic records has made the current paper-based system of classification and declassification unworkable. Use of advanced information technology is crucial to achieving increases in efficiency and better balancing information security with government openness. However, there is little evidence that Executive departments and agencies (agencies) are employing or developing the technologies needed to meet these objectives. 
Reforms are essential if we expect to manage the increased volume of records, share critical information among agencies and live within available resources. Essential to such reforms must be improved integration of classification and declassification programs and better resolution of the inherent tension between keeping secrets and ensuring the openness required for an accurate historical record. 
This report describes the difficulties—both technical and cultural—we face in reforming the system and recommends practicable steps to overcome them and effect reform. The Board understands the many challenges facing agencies in today’s resource-constrained environment. Nonetheless, the measures in this report are critical to modernize a security classification program capable of protecting our nation and supporting fundamental democratic values and transparency. The Board recognizes there is disagreement among stakeholders with many of the recommendations in its report. Modernization is difficult and bureaucracies’ natural tendency is to maintain the status quo. These recommendations will succeed only with a determined implementation strategy and vigorous oversight backed by the President. The Board believes it will require a White House-led steering committee to drive reform, led by a chair who is carefully selected and appointed with specific authorities granted by the President. A White House-led Security Classification Reform Steering Committee, appointed by and accountable to the President, should manage the implementation of the reforms required to transform current classification and declassification guidance and practice. 
After extensive research and discussions with stakehold-ers in and outside Government, the Board has concluded that the current classification system is fraught with problems. In its mission to support national security, it keeps too many secrets, and keeps them too long; it is overly complex; it obstructs desirable information sharing inside of government and with the public. There are many explanations for over-classification: most classification occurs by rote; criteria and agency guidance have not kept pace with the information explosion; and despite the Presidential order to refrain from unwarranted classification, a culture persists that defaults to the avoidance of risk rather than its proper management. 
To address the concerns of excessive classification under present practice, the Board recommends:
• Classification should be simplified and rationalized by placing national security information in only two categories. This would align with the actual two-tiered practices existing throughout government, regarding security clearance investigations, physical safeguarding, and information systems domains. Top Secret would remain the Higher-Level category, retaining its current, high level of protection. All other classified in- formation would be categorized at a Lower-Level, which would follow standards for a lower level of protection. Both categories would include compartmented and special access information, as they do today. Newly established criteria for classifying information in the two tiers would identify the needed levels of protection against disclosure of the information. Using identifiable risk as the basis for classification criteria should help in deciding if classification is warranted and, if so, at what level and duration. 
• Classified national security information in the two tiered model would continue to be subject to declassification in accordance with the re- quirements of Executive Order 13526, “Classified National Security Information”. The two tiers should be defined and distinguished by the level of identifiable protection needed to safeguard and share information appropriately, and these protection levels would determine whether classification is warranted, at what level, and for how long. Classification guidance would clearly define levels of protection by identifying a specific consequence of release of the classified information and the potential harm to the national security of limiting the sharing of the information. The difficulty of applying the current concept of presumed “damage” during derivative classification would be replaced by a more concrete application of level of protection necessary for sharing and protecting. This change in guidance would reflect how classification is actually practiced by derivative classifiers—deciding how much protection is needed based on the sensitivity of the information to both protect and share appropriately. Determining a level of protection to facilitate or impede dissemination is more prescriptive in practice and would assist classifiers in making more accurate classification decisions. Applying this risk management practice by identifying the level of protection needed based on the sensitivity of the information, rather than potential damage if disclosed, should allow users to classify information at the lowest level of protection or to keep the information unclassified. Specific protections accorded intelligence and non-intelligence sources and methods should also be better-defined and -distinguished. 
• The Board recognizes that the adoption of a two-tiered model will pose greater challenges for those agencies whose internal practices are more dependent upon current distinctions between Secret and Confidential. 
• Classified information that is operational or based on a specific date or event should be automatically declassified without additional review or exemption when that operation or event passes. The records containing this perishable information should be marked as classified “Short-term” (or similar term) at the time of creation. 
• In order to effect the cultural shift implicit in these recommendations, guidance should assume that classification decisions are made in good faith and should afford a ‘safe harbor’ for classifiers who adhere to proper risk management practices and, when unsure, decide not to classify. Classification training should address the culture bias that favors classification, and often over-classification, through coordinated, consistent education that underscores the responsibility to not classify in the presence of doubt. 
As discussed in the technology section of this report, available technologies, such as context accumulation, predictive analytics and artificial intelligence, should be piloted to study their effectiveness on helping implement these recommendations and to engage users and garner their trust in a new system. 
Declassification is a complex and time-consuming process, typically performed in a culture of caution with- out much attention to efficiency and risk management. 
Sequential referral of classified records for review by each agency that claims an “equity” in the record takes a great deal of time. Agencies are reluctant to share their declassification guidelines, impeding efficiency that could be realized from greater interagency coordination and collaboration. Because declassification is not seen as a way to serve the national security mission, the public’s right to know what its government does is not well-served. 
The problem is growing. Agencies are currently creating petabytes of classified information annually, which quickly outpaces the amount of information the Government has declassified in total in the previous seventeen years since Executive Order 12958 established the policy of automatic declassification for 25 year old records. Without dramatic improvement in the declassification process, the rate at which classified records are being created will drive an exponential growth in the archival backlog of classified records awaiting declassification, and public access to the nation’s history will deteriorate further. 
To address this serious concern, the Board recommends streamlining the declassification process as follows:
• A process should be implemented for the systematic declassification review of historical Formerly Restricted Data (FRD) information. The Departments of Energy and Defense may choose to convert historical FRD information either to Restricted Data information or to classified national security information. FRD information concerns the military utilization of nuclear weapons, including storage locations and stockpile information and often dates from the end of World War II through the height of the Cold War. Although often no longer sensitive or cur- rent, this type of FRD information is of high in- terest to researchers yet remains largely unavail- able to the public, because there is no process for systematically reviewing it for declassification and release under the terms of the Executive Order for national security information. 
• Strengthen the National Declassification Center (NDC) to establish a more coordinated govern- ment-wide declassification system. 
• Executive Order 13526 should be revised to eliminate the additional three years now authorized to process multiple agency equities in all archival records (including those outside the NDC). 
• The declassification system should manage risk and better balance resource-intensive agency reviews with the democratic value of timely public release. Rules that govern declassification, including those concerning historical nuclear information, should tolerate greater risk. 
• Streamlined archival processing should expedite public release of declassified records, with such records automatically transferred to the National Archives and Records Administration (National Archives). 
• Public representatives, including experts from the Government Openness advocacy community, should be added to the inter- agency NDC Advisory Panel (NAP) advising the NDC Director. 
• Immediately require agencies to share declassification guidance and training and prioritize the review of historically significant records and ensure timely transfer to the National Archives. 
• Streamline activities of both the NDC and agencies to complement the modernization initiatives directed by the President in his Memorandum on Managing Government Records. 
• Classification and declassification program staffs should collaborate with agency historians and records officers to ensure that historically significant information is identified as early as possible in its “life” and then set aside for historical review and preserved for the long-term. Agency histories, both classified and unclassified, should serve policymakers and operational leaders with “lessons learned” as well as contributing to the historical record. Agency history programs should be promoted across Government and aligned in “centers” that bring declassification reviewers and historians together. Classified histories should be reviewed at a specified interval for declassification and release to the public. 
• Pilot projects should be identified to develop best practices and design a more streamlined system. 
Classification and declassification are not keeping pace with the myriad of challenges facing the system: digital information creation, access for cleared persons, existing backlogs of paper holdings awaiting declassification review, long-term storage requirements, or the rights of a democratic society to as much information as possible about its Government. Available technologies are rarely used to meet current needs; neither are agencies preparing to use these technologies to handle the enormous volume of digital records. As a result, the Government is currently unable to preserve or provide access to a great many important records. The challenge can be met only with determined efforts to modernize classification and declassification by employing existing technologies and developing new tools. Agencies should collaborate on policy, share technologies, promote best practices and develop common standards. Metadata are especially critical to future high-speed data manipulation in the digital era. Promising new technologies should be tested through a series of pilot projects, beginning with a declassification project at the NDC; once proven, they can be deployed at multiple agencies and then expanded to include pilot projects for classification. The ultimate goal of these pilots is to discover, develop and deploy technology that will: 
• Automate and streamline classification and declassification processes, and ensure integration with electronic records management systems. 
• Provide tools for preservation, search, storage, scalability, review for access, and security application. 
• Address cyber security concerns, especially when integrating open source information into classified systems. 
• Standardize metadata generation and tagging, creating a government-wide metadata registry. Lessons learned from the intelligence community will be helpful here. 
• Accommodate complex volumes of data (e.g. email, non-structured data, and video teleconferencing information). 
• Advance government-wide information management practices by supporting the President’s Memorandum on Managing Government Records. 
The President should hold the Steering Committee accountable for ensuring the interagency collaboration needed to employ existing technologies and develop new methods to modernize classification and declassification.

06 December 2012


'Confucian Jurisprudence in Practice: Pre-Tang Dynasty Panwen (Written Legal Judgments)' by Norman P. Ho in 22(1) Pacific Rim Law &a Policy Journal (2013) 48-110 comments that
Most scholarship on Chinese legal philosophy has neglected the study of Confucian jurisprudence in practice. As a result of this incomplete portrayal, scholars predominantly view the premodern Chinese Confucian legal tradition as lacking a rule of law system, which has led to blaming Confucianism for much of China’s modern and historical rule of law problems. This article seeks to complicate this view by examining Confucian jurisprudence in practice: specifically, the development of pre-Tang dynasty panwen (written legal judgments). Through analysis of specific panwen from various Chinese primary sources — many of which have never been translated into English — this article will show that even in Chinese antiquity the legal system was not solely marked by codification or the lack of the rule of law, but was far more complex and diverse than most scholars have portrayed. For example, elements of case law played an important role in Chinese legal history. Indeed, it is an especially good time to build our understanding of the use of cases and the role of panwen, in China’s legal past given the Supreme People’s Court’s recent emphasis on the role of case law in contemporary Chinese jurisprudence. 
Ho concludes -
From the first ancient panwen in the Western Zhou to the sixth century A.D. panwen from the Wei period, we see a continuing line of development of the panwen genre. As panwen developed, they became more sophisticated and complex in both form and substance. Pre-Han dynasty panwen were frequently first oral panwen which were later recorded. In the Han, however, authors such as Dong Zhongshu began to immediately write down their judgments and consciously label them as pan. 
In terms of legal reasoning, panwen throughout the pre-Tang development years drew on a variety of sources of law—history, general principles in ancient authoritative texts such as the Spring and Autumn Annals, and even natural law norms. Rules of law were announced and facts were applied to law both with growing sophistication and specificity, from simple juxtaposition in earlier panwen, to a desire to precisely match (even to the point of a very clear, character-to-character language analysis by the judges, such as in Shuxiang’s judgment of Yang Shefu and Sima Shuo’s panwen on Qing Zheng) the alleged criminal actions and the legal standards. A growing respect of precedent can also be seen as reflected first in Dong Zhongshu’s panwen, and later throughout the Han-Tang transition period of Chinese history. Panwen’s linguistic form also steadily developed from freer forms of prose, to language that utilized parallel construction and parallel sentences. Hypothetical panwen also emerged in the Han as a way for officials to create precedents and also to think through difficult cases. Finally, panwen throughout the entire pre-Tang period were steadily utilized to deal with more and more issues and disputes in society—from crime (theft, murder, and the like), to family issues (marriage), ritual propriety, ancestral sacrifices and offerings, military affairs, animal criminals (such as Tong Hui’s tiger case) and even to (as we saw in the Han-Tang transition) more abstract debates over legislative policy. This is a testament to the growing pervasiveness of panwen in Chinese society, and the importance premodern Chinese government placed on law and legal reasoning to solve a variety of social and administrative problems (again, countering the stereotypical narrative of premodern China as a society quite unconcerned with law). Of course, not all panwen we have examined in this article are models for good, reliable, and sound legal reasoning (such as Confucius’s judgment on Shaozheng Mao). We cannot possibly expect them all to be. But all of them, I believe, fundamentally show an honest attempt on the part of the officials involved to engage with the law and legal reasoning even during as early a time as pre-Tang China. Panwen was influenced by, and in turn influenced, the path of Chinese legal historical development. The growing sophistication of panwen in form, substance, and also its steady increase in influence would eventually culminate in the Tang dynasty, where panwen would be institutionalized in the civil service examinations (and thus impact the lives of many men preparing for government service), written up in formal parallel prose form, and utilized for taking care of even a broader range of social problems. 
Last, through studying Chinese legal history, we can better situate current developments in Chinese law–such as the Supreme People’s Court’s Guiding Cases–in historical context and at the very least, understand that they are not necessarily new or revolutionary ideas to penetrate Chinese jurisprudence. Rather, such ideas surrounding case law development have been a fundamental part of Chinese historical jurisprudence.


'Privacy and Advertising Mail' (Berkeley Center for Law & Technology Research Paper, 2012) by Chris Hoofnagle, Jennifer Urban & Su Li considers
why Americans may frame the generation and receipt of unsolicited advertising mail as a privacy violation. We then present data from our nationwide survey showing that a very large majority of Americans, across all ideologies, educational attainment levels, age, and income levels, support the creation of a do-not-mail mechanism similar to the popular Telemarketing Do Not Call Registry. We discuss our results in light of the fact that direct advertising mail now makes up more than half of all mailpieces sent by the United States Postal Service (USPS).
The authors conclude -
In considering why Americans may think of advertising mail as a “privacy” issue, we suggest that this may be both because of the extensive collection and use of personal information targeting and sending it entails, and a reaction to a sense of intrusion created by receiving unwanted mailpieces. There is a little more information in the literature and court cases on the concept of “intrusion” than the concept of “privacy-control,” but the literature is lean overall, and the concepts have never been compared to one another, so we cannot say if one is more salient than the other. Our data contribute to the overall trend by showing that most Americans would like to have some ability to block advertising mail. This result is robust across political ideology, educational attainment, age, and income level. Both men and women strongly support the idea of DNM, though women support it more. 
Survey research showing annoyance with advertising mail and support for a do-not-mail mechanism does not in itself justify regulatory action. Nor does it specify how DNM should be implemented if it were adopted. Similarly, regulation of saturation and “Every Door Direct” mail may speak to Americans' interest in reducing intrusions into their home, but it would do little to address the interests in controlling the underlying collection and use of personal data. 
Nonetheless, it would be reasonable to consider interventions in this space to respond to Americans’ privacy concerns. Indeed, we think it would be reasonable to consider interventions, if not for privacy, then for the sake of the integrity of the USPS as one of America's great institutions. Especially in light of its fiscal constraints and lack of more broad-based support from Congress, the USPS sees advertising mailers as an important constituent and aggressively pitches new ways to get advertising mail intomailboxes. Over the years, it has failed to modernize the outdated and unwieldy Prohibitory Order process or create other innovations to help another main constituent—mail recipients—avoid unwanted mail. 
The USPS' fiscal challenges have created incentives for the agency that directly contravene recipients’ desire to manage advertising mail. Though only a limited number of studies exist, the strong thread among them is dislike for unwanted advertising mail; our results show a strong desire for opt-out control. The USPS' current course of increasing its reliance on advertising mail, while fiscally understandable, could cause all mail to simply become “junk” in the eyes of Americans. Americans who can abandon the USPS are more and more likely to in light of increasing advertising mail volumes. 
Given the importance of advertising mail as an industry, and of the USPS to United States economic, security, and social interests, our findings could serve as a wake-up call to markets, the USPS, and regulators to more fully explore citizens’ rejection of direct advertising mail and find ways to address their concerns while preserving the fundamental service provided by the USPS.

04 December 2012


'The sex trade in Northern Ireland: the creation of a moral panic' (Institute of Criminology & Criminal Justice School of Law Queen’s University, Belfast Working Paper, December 2012) by Graham Ellison concisely questions the moral panic about 'body work' in Northern Ireland.

Ellison comments that
Sex work or prostitution – the term varies depending on one’s ideological leaning – has once again been thrust into the spotlight in Northern Ireland in the aftermath of Lord Morrow’s Human Trafficking Bill that has attracted intense publicity, including a recent BBC documentary. This Bill includes a raft of provisions to support victims of human trafficking, but the main focus of attention is Clause 4, which for the first time makes it a criminal offence to pay for sex using the services of a sex worker. The rationale here is that this will reduce ‘demand’ and sex workers will simply have to down tools and find something else to do with their time. However, Northern Ireland already has fairly robust penalties in place to deal with sexual trafficking: Since 2009 it is already an offence (punishable by a jail term) to knowingly procure sexual services from a trafficked victim, while existing law (rightfully) prohibits sexual activity with someone who is underage or otherwise vulnerable.
He argues, persuasively and concisely, that the law
is not required, conflates two very different issues (prostitution and trafficking), is premised on a particular abolitionist view of sex work that does not address the complexity of the issues; and is out of line with policy developments occurring elsewhere in the United Kingdom. Does Northern Ireland need this law? My answer is ‘No’ for the simple reason that the PSNI have enough powers to deal with trafficking and those who have been coerced into prostitution.
Ellison comments that
A similar proposal has already been rejected across the water by the Scottish Parliament (though a private members bill there is trying to slip it in by the back door) and also by the Westminster Parliament who felt that it was unworkable and ultimately counter-productive. In spite of all the fantasy stories about sexual trafficking into Northern Ireland there have been two prosecutions in the past decade, though it is debatable to what degree coercion or forced movement was involved in one of these cases (the technical definition of trafficking according to the Palermo Protocol). Lord Morrow’s Bill conflates (and confuses) prostitution with trafficking on the grounds that by removing one you also remove the other: In other words demand will fall. This is another conjecture.
There is not the slightest scrap of evidence that this law will have any effect on demand for the simple reason that prostitution and trafficking are different activities. Only a small minority of victims are trafficked globally for sexual exploitation; the biggest single arena for forced trafficking concerns seasonal agricultural labour. Would anyone seriously recommend ‘abolishing’ the agriculture industry in order to get rid of trafficking into the sector? Many immigrants to the UK (from recent EU accession states) have restrictions placed on where they can work, and at what. Ultimately debates about trafficking into the UK are ultimately debates about immigration; they have little if anything to do with sexual exploitation. In any case, there is strong evidence that for the determined trafficker tougher penalties increase the rewards: The higher the risk the more lucrative in financial terms the endeavour can be.
He goes on to argue that the proposed law
reflects a particular abolitionist perspective that draws on a strand of radical feminism and far-right Christian fundamentalism(that also adopts a particular stance on creationism, homosexuality, faith schools etc.). These have become joined in a rather unholy alliance. Abolitionists want to eradicate the entire sex industry (including pornography and what they perceive as other vices) and argue that all commercial sex equates to ‘rape’ pure and simple. They hold this to be the case for even consensual sexual commerce encounters. This is a position held by the PSNI who also adhere to this abolitionist perspective, with a number of senior officers also linking prostitution and rape.
He offers the mordant comment that
For abolitionists there can be no debate about this: Sex work should be made illegal with some even suggesting that men who pay for sex should be placed on the sex offenders register for life. However, at the extreme end of the scale a number of abolitionists go further and argue that ALL sexual activity that involves penetration – including consensual sex between husband and wife, boyfriend and girlfriend – can be characterised as rape and extreme violence against women. This of course is an ideological argument grounded in a particular view of patriarchal relations that I cannot address here, but it also suggests a rather narrow reading of sex work and in particular the ability of women (and men) to make choices. Speaking of men, where do male sex workers– either as providers to other men, or providers to women – feature in this abolitionist analysis? The short answer is that they don’t. More generally, however, this abolitionist perspective homogenises all sex work as involving the same characteristics and focuses almost exclusively street prostitution – but this represents only an estimated 10-15% of the total. It is, however, the aspect of sex work that can cause major problems, in terms of residents’ complaints, the issue of pimping, violence and drug abuse not to mention the spread of sexually transmitted diseases.  ...
In fact, many sex workers and many feminists and sex workers rights organisations who support them argue that they engage in sex work through ‘choice’ and deeply resent intrusions by men and abolitionist groups into how they choose to live their lives. Female sex workers interviewed for one major study felt that the activities of those groups and individuals who tried to ‘rescue’ them made their lives a misery. 
The issue of trafficking and sexual exploitation has been talked up by a powerful constellation of lobbying and advocacy groups for their own perhaps well-meaning, but at times, dubious ends. There are too many groups with an financial and job security interest in perpetuating outlandish claims about the nature of the sex trade in Northern Ireland. These fantastical claims have been bolstered by highly inaccurate and misleading data from the PSNI and the NI Department of Justice as well as uncritical and sensationalist reporting in the local media (though in fairness the Belfast Telegraph, has attempted to introduce some sense of reason into this debate). The PSNI for example, have quoted statistics suggesting that prostitution is Northern Ireland’s largest commercial enterprise – this is just a nonsense claim, and is based on a series of unreliable estimates that are impossible to substantiate. Yet it was repeated unproblematically in a recent BBC Spotlight documentary. Why not just pull a figure out of a hat? Likewise, the force has claimed that Northern Ireland is the now THE biggest sex trafficking hub, with the highest demand for commercial sexual services in all of Europe and the UK! Yes that’s right, even bigger than Prague, London, Moscow, Budapest, Berlin, Paris, Amsterdam or any city you could care to mention. I am not sure on what ‘evidence’ this ridiculous claim is based, but the PSNI really need to get out and travel more.
He concludes that
Prostitution and sexual trafficking have assumed the status of a moral panic in Northern Ireland. Fantastical and unsubstantiated stories abound about the involvement of Russian, Chinese and Albanian mafia gangs in running vice rings (where are the prosecutions?); that local paramilitary groups are up to their eyes in sexual exploitation and trafficking (again where are the prosecutions?); and bizarrely the claim that men here spend over £500,000 per week on commercial sex (how was this figure compiled?). Official data about the scale or scope of the ‘problem’ are ambiguous and in any case difficult to come by. PSNI data are incomplete – strangely soliciting offences have never been recorded here until a clerical error was rectified in early 2011 – but in any case there have been no prosecutions for soliciting in almost two years. Both anecdotal and official data suggest that street prostitution is not a significant issue in Northern Ireland (for historic reasons to do with the conflict and the dangers of using public space, particularly at night) with sex work largely having been displaced into indoor establishments. Nevertheless, even the size of the indoor sector is comparatively small as far as can be ascertained. In spite of the hyperbole about Northern Ireland as a ‘high demand’ venue for sexual commerce, PSNI estimates (and I use the word cautiously) about the size of the commercial sex sector put the number of female sex workers operating across Northern Ireland at any one time at between 80 and 100.  ...
I fully accept that where trafficking for sexual exploitation occurs it should be dealt with – firmly. I have no doubt about that. However, as a social scientist I need evidence and surveying the terrain of sexual commerce in Northern Ireland this is sorely lacking. Moral panics and media frenzies do not make good legislation. We need a rational debate, without exaggerated and self-­serving claims from politicians, advocacy groups and the PSNI. I have made the point before and I will make it again: For all the talk about women involved in the sex industry as ‘victims’, there is no apparent appetite for actually speaking with them in order to assess what the real issues are and how these might be addressed.

03 December 2012

Personality Rights

'The Laws of Image' by Samantha Barbas in New England Law Review (forthcoming) 1-65, comments that
We live in an image society. Since the turn of the 20th century if not earlier, Americans have been awash in a sea of images throughout the visual landscape. We have become highly image-conscious, attuned to first impressions and surface appearances, and deeply concerned with our own personal images – our looks, reputations, and the impressions we make on others.
The advent of this image-consciousness has been a familiar subject of commentary by social and cultural historians, yet its legal implications have not been explored. This article argues that one significant legal consequence of the image society was the evolution of an area of law that I describe as the tort law of personal image. By the 1950s, a body of tort law – principally the privacy, publicity, and emotional distress torts, and a modernized defamation tort – had developed to protect a right to control one’s image and to be compensated for emotional and dignitary harms caused by interference with one’s public image. This law of image produced the phenomenon of the personal image lawsuit, in which individuals sued to vindicate or redress their images. The rise of personal image litigation over the course of the 20th century was driven by Americans’ increasing sense of protectiveness and possessiveness towards their public images and reputations.
This article offers an overview of the development of the image torts and personal image litigation in the United States. It offers a novel, alternative account of the history of tort law by linking it to developments in American culture. It explains how the law became a stage for, and participant in, the modern preoccupation with personal image, and how legal models of personhood and identity in turn transformed understandings of the self. Through legal claims for libel, invasions of privacy, and other assaults to the image, the law was brought, both practically and imaginatively, into popular fantasies and struggles over personal identity and self-presentation.
Barbas states that
This article offers a broad overview of the development of the modern “image torts” and the phenomenon of personal image litigation. An intertwined history of the law, culture, and the self, it explores how the law became a stage for, and participant in, the modern preoccupation with personal image, and how tort law’s models of personhood and identity in turn transformed understandings of the self. Through legal claims for libel, invasions of privacy, and other assaults to the image, the law was brought, both practically and imaginatively, into popular fantasies and struggles over personal identity and self-presentation.
Throughout the article, I refer to the concept of image – public image or personal image. Although the term “reputation” is familiar in the law, it is inadequate to describe the nature of the interests at stake in many legal disputes over invasion of privacy, unwanted publicity, and defamation. Reputation, a mode of social evaluation historically associated with stable and enduring communities, is based on appraisals and judgments accrued over time. Image, by contrast, is the representation of self that one constructs and presents in a world defined by mobility and relatively transient social relations: the fleeting contacts of the city, the momentary connections of the world wide web. When a person is depicted in the media in an embarrassing manner, she may be worried about her reputation among her peers, but she is also likely concerned with her image: the undesirable impression she has made on a mass audience, albeit faceless and unknown to her. She may resent not only that she has been portrayed negatively, but even more, the fact that she has lost control of her public image. The mass media have been regarded as one of the primary threats to personal image in modern times, and this article focuses on cases brought against media defendants. In these cases, the principle that one has a right to control one’s own image -- to be the primary author of one’s image -- was written, albeit with qualifications, into tort law.
The story of the modern tort law of image begins in the late 1800s, when new technologies of visual representation and the fragmented and unstable nature of interpersonal relations in the city generated new anxieties around image, identity, and self-presentation in public. In an environment characterized by fleeting encounters with strangers, where the mass media was beginning to assume a central place in social life, appearances, first impressions and images became matters of great individual and collective significance. It was in this milieu that courts and legal theorists began to discuss the possibility of a legal right to privacy. Although the right to privacy is often described as a “right to be let alone,” privacy was primarily understood, in the legal and popular discourse of the time, as a right to control one’s public image and to be compensated for the dignitary harms caused by unwanted and undesirable publicity. As Part One explains, the privacy tort was the legal manifestation of a nascent appearance-conscious, image-conscious culture.
The further development of the visual mass media, the rise of a consumer culture in the early 20th century, and the transitory nature of modern social relations heightened the cultural emphasis on personal image and the act of image-making. As individuals were unmoored from social institutions that had traditionally anchored personal identity, they conceived of themselves increasingly in terms of images and manufactured appearances. One’s identity came to be seen as congruent with the impressions and images one projected to the world, and the ability to control these surface representations regarded as essential to personal autonomy and self-definition. The 1930s and 40s saw the doctrinal expansion of the image torts and the rise of the personal image lawsuit -- a legal action, typically for invasion of privacy or defamation, often brought against the mass media. The harm alleged was that one’s feelings and dignity were injured when the media interfered with her perceived right to fashion her own public persona. As Part Two explains, by the 1950s, tort law had come to be regarded by many as a tool in the all-important project of image management.
Part Three describes the flourishing of the image society in the latter twentieth century, and the near-obsession with personal image that has been a defining feature of the recent American social experience. It tracks the rise of what of sociologists and critics have described an “other-directed” self – a modal personality type, ubiquitous in the affluent culture of postwar America, that was consumed with personal image and the act of constructing a pleasing public facade. In a highly individualistic society, one influenced by the ideals of psychotherapy and consumerism, the ability to freely shape one’s own public persona, to “express oneself” through one’s public appearance, and to maximize one’s success by transforming one’s image were bound up with prevailing ideals of self-fulfillment, self-enhancement, and freedom of choice. Personal image litigation increased in the last quarter of the twentieth century, as did the variety of legal pathways available to vindicate harms to one’s image, including a family of privacy torts, a “right of publicity,” and an independent tort action for emotional distress. The deeper Americans’ investment in their images, and the greater the perceived threats to personal image, the more instinctive the resort to the law to protect them. Freedom of speech notwithstanding, we remain committed to the idea that interference with one’s public image can, under many circumstances, violate important rights of personhood.
In describing this body of law as image torts, I do not want to suggest that the parties who made use of them were concerned only with their images. Many of the kinds of mass media misrepresentations that we will see produced feelings of shock, hurt and outrage that can be rightly understood as more than merely an interest in how one appeared to others. Yet in many cases, it is clear that what drove these feelings of personal insult and violation was a sense of image-consciousness. Defamations, embarrassing publications of private facts, and false representations before the public can and often do produce serious emotional and psychic injuries; they do so, in part, because we have put so much weight on our public images and freighted them with intense personal meaning and import.
I realize that some may take issue with my characterization of American law as especially solicitous of personal image. As many have pointed out, American privacy and defamation laws, limited by the First Amendment, do not protect the right to one’s image as extensively as in other parts of the world, particularly continental Europe. It is true that image laws in the United States have been substantially constrained by freedom of speech. These limitations represent another dimension, perhaps the flip side, of modern image consciousness. In a culture where images have been the currency of social exchange, where politics and social life have been mediated by images, the ability to freely disseminate images of individuals and public affairs has been linked to the “free and robust” public discussion said to be at the core of the First Amendment’s domain. The ideal of modern expressive freedom has cut both ways: it is the prerogative to express oneself through one’s image, and at the same time, the freedom to image others. The history of American image law is thus a saga of simultaneous expansion and contraction – the greater recognition of personal image rights and at the same time, their restriction. Much of the legal scholarship in this area has focused on the latter. This piece investigates the expansionary trend and suggests why we have a law of image in the first place.

02 December 2012

Great Books and other fictions

Given that some undergrad students have trouble differentiating between a literary ilk, a literary elk and - damn you, Peter Jackson - a literary elf, we are in for fun.

I've been reading the author's promo for Jasper Jones, a 'young adult' novel that is apparently going to be mandatory reading at UC in the domestic version of Maynard Hutchins' 'Great Books' program at Chicago.

Author Craig Silvey will even be visiting the campus. Bryce Courtenay PhD (UC, 2012) is unavailable, having belatedly shuffled off to join Ethel M Dell, Owen Wister, Karl May, Ruby M Ayres and other literary giants.

Silvey informs us that
I had this insistent story buzzing with energy, but I was married to a sluggish behemoth that was burgeoning out of my grasp and gradually becoming more oblique in its scope and purpose. I had a decision to make: impulsively follow Jasper Jones down to his glade in the dead of night, or see this thing through which I instinctively knew wasn’t working. For a fastidious little man who stubbornly needs to shepherd things to their bitter end, the decision was a difficult one. But Jasper Jones was beckoning me all too urgently, and, like Charlie Bucktin, I followed Jasper through the town of Corrigan with trepidation. Fuelled by the guilt of shelving what was my second book, I embarked upon The-Year-Of-Getting-It-Done, a foetid haze of twelve hour days when I rarely saw sunlight, and sought every excuse to remain burrowed in my Quasimodo hovel of self-indulgence. Until eighteen months later, after Jasper Jones had gripped me so tightly in the beginning, I was finally prepared to let him go. I’ve always been attracted to Southern Gothic fiction. There’s something very warm and generous about those regional American writers like Twain and Lee and Capote, and it seemed to be a literary ilk that would lend itself well to the Australian condition. So I finished up with this strange little amalgam: a coming-of-age, regional mystery novel, stuffed inside a nervous little love story, garnished with family drama and adolescent escapism and anguish.
To adopt Dorothy Parker's tart dismissal of Winnie The Pooh, this ungenerous reader thwowed up. The promo's perhaps parodying Capote on one of his more deliquescent days -
  • this insistent story buzzing with energy 
  • I was married to a sluggish behemoth
  • burgeoning out of my grasp and gradually becoming more oblique in its scope and purpose
  • stubbornly needs to shepherd things to their bitter end, the decision was a difficult one 
  • Jasper Jones was beckoning me all too urgently 
  • Fuelled by the guilt of shelving what was my second book 
  • a foetid haze of twelve hour days when I rarely saw sunlight [can't have too much foetid haze, especially if you're channelling William Faulkner]
  •  remain burrowed in my Quasimodo hovel of self-indulgence  [crusty old buffer that I am, wasn't Quasimodo famous for skylarking at Notre Dame - "the bells, the bells" - rather than consorting with wombats and rabbits in their burrows, foetid or otherwise?]
  • after Jasper Jones had gripped me so tightly in the beginning, I was finally prepared to let him go. [Somewhere in the burrow Jasper's stopped gripping the author and the author's started gripping him, apparently. Sounds very Francis Bacon] 
  • it seemed to be a literary ilk that would lend itself well to the Australian condition
  • I finished up with this strange little amalgam: a coming-of-age, regional mystery novel, stuffed inside a nervous little love story, garnished with family drama and adolescent escapism and anguish. [then doused in balsamic vinegar, and with a fries and salad on the side?]
UC indicates that
The book is required reading for all commencing students at the University of Canberra. A free copy of Jasper Jones will be provided to every commencing student regardless of their course, as well as all academic and professional staff at the university. The book will be available as a paperback or as an eBook. ...
[S]taff and students will love it. The book is required reading for all commencing students, and the themes and characters of the book will work their way into subjects, activities and campus life throughout 2013. We’ll even get a visit by the author, Craig Silvey, to hear about how he created this enthralling tale.
My ungenerous comments about Great Books Lite has resulted in a sharp intake of breath on the part of one reader and a pointer by another to some tart comments on Mr Courtenay.

Earlier this year the SMH profiled Mr C, with Jane Cadzow commenting
Flicking through the newspaper files, my eye is caught by a snippet about Courtenay competing in the 1996 Boston marathon. According to the report, he realised 35 kilometres into the race that he wasn't as fit as he should have been. Deciding the best tactic was to hook up with another runner, he fell into step with someone nearby and discovered that he, too, was a writer. The pair chatted intermittently until crossing the finish line, at which point Courtenay asked his new friend's name. "Stephen King," the guy replied.
I contact the office of the master of the chiller-thriller to check the details of the story. The email from King's executive assistant, Marsha De Filippo, is short and surprising: "Stephen has never run in the Boston marathon."
Oh dear. Let's move on. Cadzow continues -
it is still in my mind when I come across an account by Courtenay of how he came to migrate to Australia. "I was in a bar in Earls Court in London," he is quoted as saying, "and there was this unbelievably beautiful woman with a man you just knew was going to end up fat and bald. They were talking to each other about how Australia was a cultural desert that didn't appreciate their talent, which is why they'd come to the UK, and I was thinking, 'I don't have much talent, maybe that'd be okay for me.' Of course, it turned out they were Clive James and Germaine Greer."
The trouble is that Courtenay moved to Australia in 1958, several years before James and Greer went to England and became celebrated expatriates. Again, it could be an inconsequential error. Or it could be part of a pattern. ...
As a late-summer storm brews outside his living-room window, Courtenay tells me a well-polished anecdote about the time the manufacturers of Mortein threatened to dump McCann Erickson, the agency that then employed him, because their insect spray wasn't selling. Summoned to the office for an emergency meeting, he spent the 20-minute taxi ride jotting the outline of a new campaign on the back of an envelope: "I said to the cab driver, 'What's your name?' He said, 'Louie.' And I wrote this thing about a fly."
Visitors to the Mortein website can view a TV ad starring a fly called Louie that dates from 1957, before Courtenay got his start in the industry. He cannot have invented the character, as he has long claimed, but he did play a significant part in the creation of the singing Louie that first appeared on our screens in 1962 and was still there, spreading disease with the greatest of ease, some five decades later. ...
In the book, he says advertising industry heavyweight Sim Rubinsohn persuaded Gough Whitlam's government to introduce legislation that would permit parents to give their children transfusions at home, rather than having to rush back and forth to hospital. But talking to me, Courtenay takes credit for lobbying Whitlam himself: "One day I said to him, 'Gough, if ever you are prime minister, and I'm sure you are going to be, can you make sure that they allow home transfusions? He said, 'Bryce, I promise you.'"
In fact, home transfusions started in the 1970s at the instigation of doctors, says Henry Ekert, who at the time was director of clinical haematology at Melbourne's Royal Children's Hospital and head of Victoria's haemophilia treatment program. "We started home treatment without checking with Gough Whitlam or anybody else because it was not necessary to have legislation," Ekert says.
... [H]e says he graduated as "one of the most applied and academically gifted children the school has seen". David Williams, the school's foundation director, looks up old college magazines and sends puzzling news: "The 1952 magazine lists the matriculants in the Transvaal Secondary School Certificate examination for the previous year - his name does not appear in that list."
After the email from Williams and my conversation with Anderson, I phone Courtenay. "Of course I won a scholarship," he says indignantly. His sister is wrong about other things, too: ... "My sister is a deeply religious, Pentecostal person," he says. "She gives her version of the truth. You have to decide."
When I mention his name's absence from the King Edward VII School matriculation list, there is a brief silence on the line. "I am astonished," Courtenay says. "But I can't say more than that." A couple of minutes later, he winds up the call.
"I don't want to say any more. Honestly, this is getting absurd. I mean, my life is an open book."
He wasn't on oath, of course, but fiction is best left for the potboiler rather than the bio.


'To Drink the Cup of Fury: Funeral Picketing, Public Discourse and the First Amendment' by Steven Heyman in 45 Connecticut Law Review (2012) 101-176 comments that
In Snyder v. Phelps, the Supreme Court ruled that the Westboro Baptist Church had a First Amendment right to picket the funeral of a young soldier killed in Iraq. This decision reinforces a view that has become increasingly dominant in First Amendment jurisprudence—the view that the state may not regulate public discourse to protect individuals from emotional or dignitary injury. This Article contends that this view not only sacrifices the law’s protections for individual personality but also undermines the normative foundations of public discourse itself. The Article then presents an alternative theory of the First Amendment which holds that the same values of human dignity and autonomy that support free speech also give rise to other fundamental rights. Thus, speakers should have a duty to respect the personality and rights of others. Drawing extensively on the record in Snyder as well as on other materials, the Article argues that Westboro’s funeral picketing should not receive First Amendment protection, for the picketing is intended to condemn the deceased and to inflict severe distress on the mourners in violation of their rights to privacy, dignity, emotional well-being, and religious liberty. Finally, the Article shows that although Westboro prevailed in Snyder, this may prove to be a Pyrrhic victory, for the Court also suggested that states can protect mourners through carefully drawn buffer-zone laws. ...
How far does the First Amendment’s protection for freedom of speech extend? May the law ever restrict speech because it causes emotional or dignitary injury to others? These were the central questions in the Supreme Court’s recent decision in Snyder v. Phelps. On March 3, 2006, a young Marine named Matthew Snyder was killed in the line of duty in Iraq. One week later, Pastor Fred Phelps Sr. and several of his followers from the Westboro Baptist Church (“Westboro”) picketed Matthew’s funeral in Westminster, Maryland. The demonstrators held up signs emblazoned with slogans like “Thank God for Dead Soldiers,” “God Hates Fags,” “You’re Going to Hell,” and “America is Doomed.” These signs reflected Westboro’s belief that God was killing American soldiers to punish the nation for tolerating homosexuality and other conduct that the church regarded as sinful.
Matthew’s father, Albert Snyder, brought suit against Westboro and its members for the anguish that he suffered from their picketing of the funeral. A federal jury held the defendants liable for the torts of intentional infliction of emotional distress (“IIED”) and invasion of privacy and awarded Snyder five million dollars in compensatory and punitive damages. In March 2011, however, the Supreme Court overturned this award on First Amendment grounds. Writing for the majority, Chief Justice John G. Roberts Jr. acknowledged that Westboro’s picketing had “inflict[ed] great pain” on Matthew’s father and that “its contribution to public discourse may [have been] negligible.”
Nevertheless, Chief Justice Roberts maintained that the protesters had addressed the public as a whole on matters of public concern while standing on public property that was located a considerable distance from the funeral. Under these circumstances, he held that the picketing was entitled to the “special protection” that the First Amendment affords to speech on matters of public concern.
The Chief Justice was careful to note that the decision was a “narrow” one that was “limited by the particular facts before [the Court].” But the significance of the case goes far beyond that. Funeral picketing inflicts greater pain and distress on its targets than virtually any other form of expression. Thus, Snyder is likely to be regarded as a leading authority for the view that the First Amendment generally bars the state from restricting the content of speech on public issues in order to protect individuals from emotional or dignitary injury. Of course, there is nothing novel about this view - in recent decades, it has become the dominant position in First Amendment jurisprudence. As the Snyder case shows, however, this position is deeply problematic, for it requires the Court to protect speech even when it causes great harm and makes little or no “contribution to public discourse.”
In this Article, I criticize the Snyder decision and the conception of free speech on which it is based. After summarizing the decision in Part II, I argue in Part III that the majority fundamentally misunderstood the nature of Westboro’s funeral picketing. As the group’s own statements make clear, the message of God’s hatred is not simply addressed to the public in general; it is also directed toward the mourners in particular. As Shirley Phelps-Roper has explained, Westboro’s goal is to “put [] the cup of the fury and wrath of God to your lips and [to make] you drink it.” The real issue in cases like Snyder is whether there is a First Amendment right to address speech of this sort to the mourners at a funeral and thereby cause them profound emotional distress.
The majority did not directly confront this issue because it failed to appreciate the fact that Westboro’s speech was directed to the mourners as well as to the public at large. However, the Court did articulate a view of the First Amendment that generally would preclude the state from regulating public-concern speech in order to protect individual dignity and personality. In Part IV, I argue that this view not only gives short shrift to those values, but also tends to undermine the sphere of public discourse itself by negating the practical and normative conditions on which it depends.
In Part V, I outline an alternative theory of the First Amendment that seeks to overcome these problems. According to this view, which I shall call the liberal humanist approach, public discourse should not be understood as a realm in which all standards of civility and respect have been suspended, or as a marketplace that is capable of operating on its own and neutralizing harmful expression. Instead, we should understand public discourse as discussion among persons who recognize one another as free and equal members of a self-governing community. On this view, the right to free speech carries with it a duty to respect the personality and rights of others. In more general terms, the liberal humanist view holds that freedom of speech exists within a broader framework of rights, all of which are rooted in respect for human freedom and dignity and are intended to promote the full development and flourishing of human nature. The First Amendment should not be interpreted to protect speech that violates the rights of other people, except in situations where the value of the speech outweighs the value of the other rights with which it conflicts.
The Article then applies this theory to funeral picketing. In the interest of clarity, I begin in Part VI with the paradigmatic case of funeral picketing - a situation in which the protesters stand so close to the funeral that they are able to communicate with the mourners in a direct and immediate way. I argue that such picketing causes serious injury to the mourners and violates their rights to emotional well-being, privacy, dignity, and religious or spiritual liberty. The value of the speech does not warrant the injuries that it causes, because the protesters are not justified in communicating directly with the mourners and there is no need to stand so close to a funeral to communicate with the public at large. For these reasons, the First Amendment should not protect funeral picketing in its paradigmatic form.
In Part VII, I consider whether, under the liberal humanist approach, we should reach the same conclusion on the facts of Snyder itself. This is a much more difficult case because the protesters could not be seen or heard from the church where the service took place. However, Westboro’s members regarded themselves as picketing the funeral; they could be seen from the procession; they sought to convey an intensely hateful message to the mourners; they succeeded in communicating this message, albeit in an indirect way; and their conduct resulted in severe emotional and dignitary injury. Once again, they lacked sufficient justification for acting as they did. On these grounds, I would hold that their actions were not protected by the First Amendment. At the same time, I agree with the majority that one of the requirements for IIED liability - a jury determination that the defendants’ conduct was “outrageous” - is simply too vague a standard to govern cases involving speech that to a substantial extent involves matters of public concern. Thus, although I believe that a state could restrict the defendants’ conduct in Snyder without running afoul of the First Amendment, I agree that this conduct should not give rise to tort liability for IIED.
Finally, in Part VIII, I argue that the Court was right to suggest that the First Amendment allows the state and federal governments to enact bufferzone laws that require protesters to stand a certain distance away from funerals, and I contend that this position should be interpreted broadly to uphold laws that require the protesters to stand out of the mourners’ sight and hearing, as the Court found that they did in Snyder itself.
Heyman concludes that
Snyder v. Phelps appears to strike an important blow for the First Amendment freedom of speech by making clear that it encompasses even the most unpopular and offensive kinds of expression. As I have tried to show, however, the decision is deeply problematic for several reasons. To begin with, the Court fundamentally misunderstands the nature of Westboro’s expression. The majority maintains that “Westboro’s choice to conduct its picketing [near Matthew Snyder’s funeral] did not alter the nature of its speech,” which was primarily intended to communicate with the public on matters of public concern. But Westboro’s members did not regard themselves as merely holding a demonstration that was “planned to coincide” with the funeral. Instead, they announced that they would “picket [the] funeral” in order to proclaim that Matthew was “[n]ow in Hell” and to convey a message of God’s hatred not only to the public in general but also to his family, friends, and religious community And as the record shows, Matthew’s father received this message loud and clear.
In this way, the Court fails to recognize the human meaning of Westboro’s picketing—the meaning that it had for those who engaged in it as well as for those who were targeted by it. The Court also fails to appreciate the human impact of the speech. Although the majority acknowledges that the picketing caused great distress, it attributes that distress to offense at Westboro’s ideology, rather than to the profound personal attack that the group leveled against Matthew Snyder and his family.
The deepest problem with Snyder is that it reinforces a theme that has become increasingly prevalent in our jurisprudence—the notion that the First Amendment requires us to protect public speech regardless of how insulting, abusive, or degrading it may be. According to the Court, we must take this position in order to avoid any “potential interference with a meaningful dialogue of ideas.” As the case of funeral picketing makes clear, however, this view is ultimately self-defeating, for a meaningful dialogue is possible only when the participants show one another at least a minimal level of respect. In this way, the Court’s approach not only negates the law’s protections for individual personality, but also undermines the practical and normative conditions for public discourse itself.
This Article has offered an alternative theory of the First Amendment. That theory holds that the same values that support freedom of speech also give rise to other fundamental rights, including privacy, dignity, emotional well-being, and other facets of what Justice Brandeis called the right to “an inviolate personality.” Westboro’s funeral picketing invades those rights in the most blatant manner by intentionally interfering with the mourners’ ability to bury a loved one in peace. Although Snyder largely precludes the use of tort law to protect these rights, it does suggest that buffer-zone laws may be enacted for this purpose. Imposing reasonable restrictions on funeral picketing would not undermine our constitutional commitment to freedom of expression, but instead would reaffirm the values of human freedom and dignity on which it is based.